THE  CONSTITUTION 


OF   THE 


UNITED     STATES 


DEFINED  AND  CAREFULLY  ANNOTATED. 


BY 

GEORGE    W.    PASCHAL, 

OF   THE    BAR    OF    THE    SUPREME    COURT   OF    TUB    UNITED    STATES :    AUTHOR    OF    "  PASCHAI/S 
ANNOTATED    DIGEST,"     "A  TREATISE   ON    CHARITABLE   USES,"    ETC.,    ETC. 


WASHINGTON,  D.  C.: 
W.  H.  &  O.  H.   MORRISON,  LAW  BOOKSELLERS, 

PUBLISHERS,  IMPORTERS,  AND  STATIONERS. 
1868. 


Entfrod  according  to  Act  of  Congress,  in  the  year  1868,  by 

GKORGE  W.   PASCHAL, 
In  the  Cli-rk's  Ollico  of  the  District  Court  for  the  Southern  District  of  New  York. 


TO    THE 

PEOPLE   OF  THE    UNITED    STATES, 

THIS  WORK 

IS   RESPECTFULLY  DEDICATED   BY   ONE 
WHOSE    MOTTO    THROUGH    LIFE    HAS    BEEN 


GEORGE  W.  PASCHAL, 

OF   TEXAS. 


NEW  YORK,  1863. 


756955 


PREFACE. 


THE  Editor  offers  no  apology  for  presenting  to  the 
public  an  annotated  copy  of  the  Constitution  of  the 
United  States.  All  men  have  fully  realized  the  maxim, 
"that  the  next  best  thing  to  knowledge  is  to  know 
where  to  find  it."  If,  therefore,  my  book  shall  serve 
as  a  guide  to  useful  and  important  information,  a  good 
work  will  have  been  accomplished.  But  it  is  believed 
that  something  better  than  the  mere  collection  of 
copious  references  has  been  attained.  The  best  defini 
tions  of  every  word  and  phrase  have  been  given,  upon 
the  very  highest  authorities.  The  utility  of  such  a 
success,  if  success  it  be,  cannot  be  over-estimated. 

The  roots  of  the  Constitution  of  the  United  States 
may  be  said  to  have  been  laid  in  the  great  principles 
of  the  English  Constitution,  which  divided  government 
into  three  separate  departments,  and  which,  from  time 
to  time,  secured  the  absolute  and  subordinate  rights  of 
every  subject,  upon  the  firm  basis  of  Magna  Charta 
and  the  Petitions  and  Bills  of  Rights,  and  other  guar 
anties  of  liberty.  These  principles  were  transplanted 


VI  PREFACE. 

by  our  ancestors  into  the  American  colonies.  They 
were  proclaimed  in  the  Declaration  of  Independence, 
which,  in  this  edition,  precedes  the  great  work  of  our 
fathers  ;  and  they  were  re-incorporated  into  all  the  State 
Constitutions  pending  the  Kevolution.  Therefore,  the 
division  of  the  powers  of  government  into  three  depart 
ments — legislative,  executive,  and  judicial — was  the 
formation  of  a  structure  upon  established  models. 

From  the  days  of  the  promulgation  of  the  Constitu 
tion  of  the  United  States  to  the  present  hour,  it  has 
been  a  subject  of  constant  discussion.  All  that  was 
preserved  of  the  debates  of  the  wise  men  of  the  Con 
vention  which  modeled  it,  and  of  the  State  Conven 
tions  which  ratified  it ;  all  that  was  said  by  the  writers, 
such  as  the  authors  of  the  Federalist,  and  the  press  of 
that  day,  has  been  republished,  and  forms  a  popular 
portion  of  our  current  literature. 

Eawle,  Sergeant,  Story,  Baldwin,  Duane,  John 
Adams,  and  Farrar,  have  written  their  commentaries 
upon  the  Constitution  ;  Curtis  his  excellent  history  of 
it ;  Calhoun  his  essay,  giving  the  peculiar  views  of  his 
school  upon  concurrent  powers  ;  Chancellor  Kent  de 
voted  the  best  book  in  his  great  work  to  its  elucida 
tion  ;  all  our  reports  of  judicial  precedents  abound 
with  interpretations  of  it ;  the  published  opinions  of 
learned  Attorney- Generals  have  guided  cabinets  ;  the 
debates  of  all  deliberative  bodies  are  interspersed  with 
closely  studied  or  loosely  expressed  ideas  in  regard  to 
it ;  every  political  editor  and  orator  become  its  expos- 


PREFACE.  Vll 

itors  ;  it  is  taught  in  all  our  law  schools  and  many  of 
our  colleges,  and  forms  a  chapter  in  the  studies  of  all 
candidates  for  the  bar  ;  all  officers  are  sworn  to  support 
it ;  every  soldier  and  sailor  in  the  late  war  took  a  like 
oath  as  a  condition  of  enlistment ;  all  amnestied  and 
pardoned  rebels  have  "been  required  to  take,  oaths  to 
support  and  defend  the  Constitution  and  the  Union 
thereunder ;  and,  in  those  States  which  resisted  it,  no 
one  is  admitted  to  be  registered  as  a  voter,  without 
taking  the  most  solemn  oath  to  the  like  eifect ;  every 
naturalized  foreigner  is  required  to  swear  allegiance  to 
it ;  the  oaths  thus  administered,  as  the  ligament  or  tie  of 
allegiance,  are  naturally  binding  upon  every  native- 
born  citizen  in  the  country.  And  now,  although  the 
sacred  instrument  has  been  published  in  every  revision 
of  laws  in  the  United  States,  in  the  Manuals  of  Con 
gress,  and  by  tens  of  thousands  in  that  excellent  vade- 
mecum  by  Mr.  Hickey,  we  hazard  nothing  in  saying 
that  the  Constitution  is  not  conveniently  accessible  to 
one  in  one  hundred  of  the  people  whose  duty  it  is  to 
read  it.  It  is  not  even  a  book  in  all  our  public  libra 
ries  ;  it  is  not  in  one  house  in  fifty ;  it  is  nowhere  on 
the  catalogue  of  school-books  ;  and  it  is  not  taught  in 
one  school  in  a  thousand.  *  There  is  a  kind  of  popular 
fallacy  that  everybody  understands  the  Constitution  of 
his  country,  when,  truth  to  confess,  comparatively  few 
have  ever  read  it  at  all,  and  still  fewer  have  studied  it 
carefully.  And  if  the  tenure  of  office  depended  upon 
the  ability  to  stand  a  careful  examination  upon  it, 


Vlll  PREFACE. 

there  would  be  enough,  vacancies  to  satisfy  whole 
armies  of  "outs"  who,  in  turn,  could  not  take  the 
oath  to  support  it,  were  the  previous  test  of  ability  to 
give  all  its  features  applied. 

It  is  in  no  spirit  of  disparagement  that  we  make  this 
admission.  Perhaps  the  same  remark  is  applicable,  to 
a  greater  or  less  extent,  to  every  civilized  people. 
There  is  too  great  a  disposition  among  men  to  take 
essential  things  for  granted.  And  yet  when  the  philo 
sophical  historian  comes  to  review  the  downfall  of 
republics  and  empires,  he  is  forced  to  the  conclusion 
that  the  loss  of  liberty  is  more  the  result  of  ignorance 
of  the  fundamental  principles  of  government  than  of 
apathy  in  defending  them.  The  most  exciting  political 
contests  which  have  divided  this  nation  have  been  the 
results  of  political  dogmas  founded  in  willful  or  actual 
ignorance  of  the  cardinal  principles  of  the  Constitution. 
A  recurrence  to  ' '  Americans  shall  rule  America  ;' '  the 
"  repeal  of  the  naturalization  laws,"  as  a  means  of  les 
sening  suffrage  ;  religious  tests;  "squatter  sovereign 
ty,"  and  its  opposite,  need  only  be  cited  in  illustra 
tion.  Yet  these  were  harmless  polemics  compared  to 
the  heresy  of  that  peculiar  school  of  "State  sove 
reignty,"  which  taught  that  the  States  had,  in  fact, 
surrendered  nothing,  but  had  only  delegated  certain 
powers,  in  trust,  to  a  common  agent ;  and  that  any 
State  could,  at  any  time,  for  any  cause,  or  no  cause, 
resume  the  delegated  powers,  and  again  peaceably 
take  its  place  among  the  nations  of  the  earth. 


PREFACE.  IX 

In  such  a  book  as  I  have  prepared,  and  designed,  as  it 
is,  for  general  use,  and  put  forward  to  meet  the  wants 
of  the  millions,  it  is  not  intended  to  advocate  or  con 
demn  any  doctrine  in  an  offensive  manner.  My  own 
views  of  the  government  were  formed  after  an  exam 
ination  of  all  the  lights  accessible  to  me,  from  1830  to 
1834.  The  doctrines  of  Nullification,  or  the  right  of 
a  State  to  nullify,  declare  void,  and  resist  a  single  law 
of  the  United  States,  and  yet,  as  to  all  other  laws,  to  be 
in  harmony  with  the  Union,  were  then  the  issues. 
From  my  Southern  stand-point,  I  was  compelled  to 
examine  the  doctrines  with  all  the  prejudices  of  intel 
ligent  surroundings  and  motives  of  interest  in  favor  of 
the  Southern  view.  Opposition  to  a  protective  tariff ; 
State  pride ;  the  apprehensions  upon  the  subject  of 
negro  slavery,  which  the  Missouri  restriction  had  left, 
and  the  incipiency  of  abolitionism  foreshadowed,  natu 
rally  inclined  all  ardent  young  men  to  embrace  the  doc 
trines  of  the  Virginia  and  Kentucky  Resolutions,  and 
the  inviting  school  of  ' '  States  Rights. ' '  But,  on  the 
other  hand,  we  had  the  most  prominent  author  of  these 
reports  and  resolutions,  and,  indeed,  the  chief  architect 
of  the  Constitution  itself  (Mr.  MADISON),  telling  us  that 
"Nullification  and  Secession  had  the  same  poisonous 
root."  And  we  had  the  weight  and  power  of  GENERAL 
JACKSON'S  name  and  his  iron  will,  standing  upon  the 
doctrines  of  that  great  expounder,  DANIEL  WEBSTER. 
I  was  obliged  to  take  my  position  as  a  lawyer,  as  well 
as  a  lover  of  my  country,  with  those  who  held  that 


x  PKEFACE. 

the  Constitution  had  created  a  government,  not  a  mere 
agency  or  compact ;  an  enduring  union,  not  a  league 
dissoluble  at  the  pleasure  of  any  State  ;  a  government 
of  limited  powers,  to  be  sure,  but  yet  having  all  the 
inherent  powers  necessary  to  protect,  defend,  and  per 
petuate  the  Union.  These  views  have  been  greatly 
strengthened  by  a  life-long  study  of  the  principles  and 
practical  workings  of  the  government.  And  they  car 
ried  along  my  convictions,  that,  as  a  citizen  of  the 
United  States,  I  owed  my  first  and  paramount  alle 
giance  to  the  nation,  and  not  to  the  State  of  Georgia, 
where  I  was  born,  and  came  to  the  bar,  nor  to  the  States 
of  Arkansas  and  Texas,  where  I  afterward  chanced  to 
reside,  and  which  have  been  the  theaters  of  the  little 
which  has  marked  my  unambitious  public  career ;  nor 
yet  to  New  York,  where  now  I  exercise  my  profession. 
I  can  most  simply  illustrate  these  views  by  the  exam 
ple  of  Texas.  That  Republic,  from  1836  to  1846,  was 
independent  and  sovereign.  It  possessed  the  powers 
of  national  taxation,  commerce,  coining  money,  grant 
ing  patents,  punishing  piracies,  enforcing  admiralty, 
declaring  war,  raising  and  supporting  armies  and 
navies,  making  treaties,  forming  alliances  and  confed 
erations,  being  represented  by  ministers  abroad,  and 
changing  the  republic  to  a  dynasty,  with  princes  and 
orders  of  nobility.  In  fact,  Texas  had  the  lawful  right 
to  do  all  that  free,  independent,  and  sovereign  States 
may  do.  But  by  annexation  these  people  became  citi 
zens  of  the  United  States.  As  a  government,  they  sur- 


PREFACE.  Xl 

rendered  or  merged  every  vestige  of  nationality.  They 
lost  these  rights  to  regulate  commerce  ;  to  coin  money 
and  prescribe  tenders  ;  to  declare  war  and  make  peace  ; 
to  naturalize  foreigners ;  to  decitizenize  any  citizen  of  the 
United  States,  and  to  exercise  every  enumerated  and 
non-enumerated  national  power.  In  consideration  of 
this  surrender  of  power,  all  Texans,  of  whatever 
nationality,  became  citizens  of  the  United  States,  enti 
tled  to  all  the  benefits,  privileges,  immunities,  protec 
tion,  and  blessings  of  the  Union.  And,  when  compared 
to  the  previous  impoverished  State  of  Texas,  these 
blessings  were  incalculable. 

With  these  convictions,  both  as  to  principle  and 
policy,  I  could  never  view  the  ordinances  of  secession 
in  any  other  light  than  as  revolution — resistance  to 
lawfully  constituted  authority,  without  any  apprecia 
ble  justification.  In  anticipation  of  the  mad,  because 
excited  effort,  I  prepared  a  treatise  upon  the  doctrines 
of  secession.  But  the  crash  was  so  sudden,  that  it 
smothered  my  effort  before  it  reached  the  public  eye. 
None  shaken  in  my  views,  with  the  commencement  of 
the  terrible  civil  war,  the  fearful  consequences  of  which 
I  publicly  foretold,  not  in  any  spirit  of  prophecy,  but 
because  they  were  the  legitimate  fruits  of  the  efforts  to 
sever  such  a  government,  I  sat  down  to  compile  the 
"  ANNOTATED  DIGEST  ' '  upon  the  laws  of  Texas,  and  the 
Spanish  laws,  upon  which  many  land- titles  within  half 
the  area  of  the  Union  rested.  I  selected  a  provincial 
work,  because  long  years  of  practice  had  forced  me  to 


Xll  PREFACE. 

collect  the  materials.  The  Constitution  of  the  United 
States  formed  a  single  chapter ;  and  because  FREDERICK 
W.  BRIGHTLEY,  Esq. ,  had  kindly  permitted  me  to  use 
his  exhaustive  notes,  my  annotations  were  not  the  most 
labored  chapter  in  the  book.  I  did  little  more  than 
add  to  his  very  accurate  references,  bringing  the  notes 
down  to  1865,  re-arrange,  number,  and  "cross-note" 
them,  so  as  to  connect  the  subjects  with  other  kindred 
matter  in  my  own  digest.  Yet  I  have  received  so  many 
high  testimonials  of  the  convenience  of  arrangement 
and  the  great  value  and  accuracy  of  the  references,  that 
I  have  determined  to  put  forth  this  little  volume  upon 
the  same  plan  of  the  "  Annotated  Digest,"  with  the 
commendations  and  approval  of  which.  I  have  had  so 
many  reasons  to  be  proud. 

Upon  the  suggestions  of  some  popular  school-men, 
the  plan  of  authoritative  definitions  and  side  questions 
has  been  adopted.  While  then  the  work  will  be  an 
exhaustive  reference-book  for  the  lawyer,  the  judge, 
the  statesman,  the  publicist,  the  editor,  and  the  politi 
cal  writer  (who  should  always  have  such  a  work  upon 
their  tables),  it  is  hoped  that  it  may  also  prove  a  popu 
lar  text-book  for  all  our  schools  ;  or,  if  this  fond  antici 
pation  shall  fail,  I  trust  that  some  more  experienced 
hand  may  be  led  to  prepare  a  text-book  which  may 
become  as  popular  in  its  appropriate  place  as  was  ever 
Webster' s  spelling-book. 

Let  us  remember  that  we  have  four  millions  of  freemen 
who  have  been  constitutionally  made  citizens  of  the 


PREFACE.  Xlii 

United  States,  in  whose  behalf  the  fundamental  charter 
has  been  amended,  few  of  whom  can  yet  read  the  in 
strument  which  guaranteed  their  liberties,  in  common 
with  others  of  their  fellow-citizens.  We  have  three 
hundred  thousand  loyers  of  liberty  coming  every  year 
to  our  shores  ;  and  we  have  millions  of  native-born 
children,  in  rural  districts  and  in  cities,  to  whom  the 
Constitution  is  not  accessible.  The  course  of  safety,  and 
of  the  preservation  and  perpetuation  of  liberty,  would 
demand  that  Congress  should  adopt  some  well- arranged 
Manual  upon  the  Constitution,  and  distribute  it  among 
the  people.  None  occurs  to  the  author  as  better  than 
that  which  defines  every  phrase,  and  points  to  every 
higher  authority  which  has  discussed  it,  and  which  has 
an  index  so  copious  that  none  can  be  misled. 

I  beg  all  readers  to  believe  that  the  political  bias 
hereinbefore  expressed  has  had  no  influence  in  the 
preparation  of  the  notes.  They  have  been  given, 
honestly,  as  they  were  found  in  the  authorities.  If 
any  light  has  been  overlooked,  it  has  been  accidental, 
and  the  omission  will  be  repaired  in  the  future  editions. 

There  are  some  great  facts  which  the  strongest  preju 
dices  cannot  overlook.  The  efforts  to  establish  the 
doctrines  of  secession  in  the  name  of  State  sovereignty 
have  tested  the  strength  of  the  Union ;  and  whether 
doubtful  powers  have  been  rightfully  or  wrongfully 
exercised,  they  have  been  so  exercised  as  to  become 
estoppels  upon  the  whole  people.  The  Southern 
school  started  upon  the  theory  that  the  "  common  de- 


XI V  PREFACE. 

fense  and  general  welfare"  guaranties  must  be  stricken 
out  of  the  Constitution.  And  while  they  retained  the 
great  landmarks,  and  almost  the  identical  language, 
the  idea  of  national  internal  improvements  and  pro 
tective  tariffs  was  forbidden  ;  slavery  was  attempted  to 
be  perpetuated  ;  and  our  "  Rights  in  the  Territories" 
were  so  clearly  defined,  that  the  people  thereof  could 
not  protect  themselves  by  their  own  wholesome  legis 
lation.  But  a  single  year  of  war  found  the  anti-in 
ternal  improvement  States-Rights  Government  making 
railroads,  and  in  possession  of  all  the  railroads  and 
other  means  of  transportation  in  the  States,  enforcing 
general  conscription,  impressments,  martial  law,  and 
almost  subsidizing  the  States  which  had  confederated 
themselves.  And  as  to  "  new  States,"  Kentucky  and 
Missouri  were  represented  at  Richmond,  while  the  gov 
ernments  thereof  were  firm  to  the  Union.  In  a  word,  the 
plea  of  NECESSITY  afforded  an  excuse  lor  every  exercise 
of  power.  So,  in  the  efforts  to  put  down  the  rebellion, 
the  military  power  was  pushed  far  beyond  the  most 
ulterior  centralizing  ideas,  and  every  obstacle  which 
stood  in  the  way  of  preserving  the  life  of  the  nation 
was  easily  removed.  West  Virginia  was  admitted  as 
a  State  of  the  Union,  upon  the  same  principle  that  Ken 
tucky  and  Missouri  were  admitted  as  States  of  "the 
Confederate  States  of  America;"  that  is,  because  the 
minority,  who  acknowledged  their  allegiance  to  the 
central  Government,  were  recognized  as  the  lawful 
State  governments.  It  has  thus  become  established, 


PREFACE*  XV 

that  the  powers  to  suppress  insurrection  and  to  crush 
rebellion,  and  the  obligation  to  guarantee  a  republican 
form  of  government,  carry  along  the  right  to  recog 
nize  none  but  the  State  government  in  harmony  with 
the  Union  as  a  lawfully  existing  State.  Such  is  the 
clear  theory  of  President  Johnson's  proclamations, 
setting  aside  State  governments  and  appointing  new 
magistracies;  such  the  theory  of  Congress  in  passing 
the  reconstruction  laws  ;  and  such  were  the  precedents 
in  Richmond,  which  are  binding  upon  the  "  engineers 
hoist  by  their  own  petards." 

Therefore,  the  doctrines  of  "  States  Rights"  seem  to  be 
narrowed  down  to  the  practical  theory,  that  when  all 
State  officials  cease  to  acknowledge  the  Constitution  of 
the  United  States,  and  the  laws  and  treaties  made  in 
pursuance  thereof,  as  the  "supreme  law  of  the  land," 
and  the  great  mass  of  the  people  sustain  them  in  rebel 
lion,  they  so  far  lose  their  positions  as  States,  as  to 
leave  the  means  of  restoration  to  the  law-making  power 
of  the  Union,  after  amendments  forming  conditions  of 
security  shall  have  been  superadded.  Such  are  always 
the  fruits  of  unsuccessful  revolution. 

These  things  are  said  in  the  interest  of  no  partisan 
view.  I  would  only  exhort  all  men,  and  all  children, 
to  consider  the  Constitution  of  the  United  States  as 
perpetual ;  to  carefully  study  its  every  word  and 
phrase,  and  the  spirit  and  intention  of  every  clause. 
And,  above  all,  never  to  engage  in  its  discussion  with 
out  a  clear  comprehension  of  every  word  employed  in 


XVI  PREFACE. 

regard  to  it ;  and  to  trust  no  man  nor  journalist  as  an 
expounder  who  misquotes  its  language,  and  shows  a 
real  or  willful  ignorance  of  its  provisions.  Such  teach 
ers  are  the  blind  leading  the  blind. 

The  Constitution  has  created  no  authoritative  ex 
pounder.  Every  exposition  has,  at  last,  to  come  to  the 
test  of  popular  opinion.  How  important,  then,  that 
the  public  judgment  shall  be  enlightened.  As  the  war 
has  stricken  human  slavery  out  of  the  Constitution,  we 
all,  in  some  sort,  stand  upon  a  new  era  in  regard  to 
the  protective  principles  and  the  guaranties  of  liberty 
which  it  contains.  And  yet  it  is  the  order  of  the 
human  mind,  under  all  dispensations,  to  consult  pre 
cedents  ;  to  allow  them  always  to  be  persuasive,  and 
generally  controlling.  In  this  light  every  citation  in 
this  little  book  has  its  value. 

The  Editor  does  not  claim  perfection  even  in  refer 
ences,  or  the  extent  of  research.  And  as  it  is  intended 
to  keep  the  work  up  as  long  as  new  editions  are 
demanded,  he  would  be  very  thankful  for  any  sugges 
tion  of  errors  or  omissions.  The  effort  is  an  experi 
ment.  All  who  will  weigh  the  great  problem  of 
liberty,  will  acknowledge  the  importance  of  educating 
every  mind  in  the  true  principles  of  our  government. 
This  can  only  be  done  by  precept  upon  precept,  line 
upon  line,  here  a  little  and  there  a  little.  If  the  zeal 
and  anxiety  of  the  Editor  is  great,  let  his  apology  be, 
that  he  has  suffered  keenly  from  the  intolerance  grow 
ing  out  of  ignorance  of  the  true  principles  of  constitu- 


PREFACE. 

tional  liberty,  and  the  reckless  depravity  in  regard  to 
their  preservation.  His  moral  duty,  in  the  direction 
of  enlightenment,  is  therefore  great. 

GEO.  W.  PASCHAL,  of  Texas. 

No.  26  Exchange  Place,  New  York. 


TABLE  OF  CONTENTS. 


PAGE. 

ABBREVIATIONS  OP  AUTHOEITIES xxiii 

DECLARATION-  OP  INDEPENDENCE 1-8 

ARTICLES  OF  CONFEDERATION 9-19 

THE  CONSTITUTION  OP  THE  UNITED  STATES,  WITHOUT  NOTES 22-50 

DIRECTIONS  FOR  BEADING  THE  ANNOTATED  CONSTITUTION. 51 

THE  CONSTITUTION  OF  THE  UNITED  STATES,  ANNOTATED 51-294 

Articles,  Sections,  Clauses,  Pages,  and  Numbers,  of  Notes  of  the  Constitution  of  the 
United  States,  Unnoted  and  Annotated. 


ARTICLES  or  CONSTITUTION  OF  U.  S. 


Preamble 

Legislative  Power — Congress I. 

House,  Qualifications  of  Voters I. 

Members,  Qualifications I. 

Representatives'  Taxes — numbers I. 

Vacancies I. 

Speaker,  Impeachment I. 

Senators,  Election  Law  of I. 

Senators,  Classification I. 

Senators,  Qualifications I. 

Vice-President,  List I. 

Presiding  Officers,  Names  of I. 

Impeachment I. 

Impeachment,  Judgment I. 

Elections,  Power  of  Congress I. 

Sessions,  Law  fixing I. 

Elections  Returns,  Qualifications I. 

Rules,  Expulsion I. 

Journals  . .  I. 


.rt. 

Sec. 

CL 

Pages. 

Notes. 

22, 

53 

5-13 

I. 

1 

22, 

56 

14-15 

I. 

2 

1 

22, 

56 

16-18 

I. 

2 

2 

23, 

66 

19,  SO 

I. 

2 

3 

23, 

67 

21-24 

I. 

2 

4 

23, 

72 

25 

I 

2 

5 

23, 

72 

26,27 

I. 

3 

1 

24, 

74 

28-30 

I. 

3 

2 

24, 

76 

31-34 

I. 

3 

3 

24, 

77 

35 

I. 

3 

4 

24, 

77 

86,  37 

I. 

3 

5 

24, 

78 

38 

I. 

3 

6 

25, 

81 

39 

I. 

3 

7 

25, 

82 

40 

I. 

4 

1 

25, 

83 

41 

I. 

4 

2 

25, 

83 

42,43 

I. 

5 

1 

25, 

84 

44-46 

I. 

5 

2 

26, 

86 

47-50 

I. 

5 

3 

26, 

87 

51 

XX 


CONTENTS. 


Art. 

Sec. 

Cl. 

Pages. 

Notes. 

Adjournment  

I. 

5 

4 

26,  88 

52 

Compensation,  Privilege  

I. 

6 

1 

26,  88 

53-61 

Two  Offices  

I. 

6 

2 

27,  90 

62,63 

Bills,  Revenue  

I. 

7 

1 

27,  90 

64,65 

Bills,  Veto  History  of  

I. 

7 

2 

27,  91 

66-69 

I. 

7 

3 

28,  93 

70 

Power  of  Congress  

I. 

8 

28,  94 

71 

Taxes,  Duties,  Imposts,  Uniformity  

I. 

8 

1 

28,  94 

72-81 

Borrow  Money  

I. 

8 

2 

28,  103 

83,  §4 

Commerce  

I. 

8 

3 

28,  105 

85-92 

Naturalization,  Bankruptcy  

I. 

8 

4 

29,  112 

93-96 

Money.  Weights  and  Measures  

I. 

8 

5 

29.  114 

97,102 

Counterfeiting  

I. 

8 

6 

29,  118 

103 

Post-offices  

I. 

8 

7 

29,  119 

104-106 

Authors,  Inventors  

I. 

8 

8 

29,  121 

107,108 

Inferior  Tribunals  

I. 

8 

9 

29,  124 

1O9 

Piracies,  Offenses  

I. 

8 

10 

29,  124 

110-116 

War,  Marque  and  Reprisals  

I. 

8 

11 

29,  127 

117-121 

Armies  

I. 

8 

12 

29,  130 

122-126 

Navy  

I. 

8 

13 

29,  132 

127-128 

Land  and  Naval  Forces  

I. 

8 

14 

29,  133 

129 

Militia  

I. 

8 

15 

29,  133 

130-133 

Militia  

I. 

8 

16 

30,  135 

134,135 

Exclusive  Legislation,  Districts,  Forts.  .  . 

I. 

8 

17 

30,  136 

136,137 

Necessary  Powers  

I. 

8 

18 

30,  138 

138 

Migration,  Slaves  

I. 

9 

1 

30,  140 

139 

Habeas  Corpus  

I. 

9 

2 

30,  140 

140,  141 

I. 

9 

3 

31,  146 

142,  143 

Capitation,  Taxes  

I. 

9 

4 

31,  149 

144-145 

Exports  

I. 

9 

5 

31,  150 

146 

Preference  

I. 

9 

6 

31,  150 

147,  148 

Treasury,  Appropriations  

I. 

9 

7 

31,  151 

149 

Nobility,  Office  

I. 

9 

8 

31,  152 

150,151 

Inhibitions,  States  

I. 

10 

1 

31,  153 

152-161 

Inhibitions,  States,  Congress  

I. 

10 

2 

32,  161 

16?,  162 

Inhibitions,  Tonnage  

I. 

10 

3 

31',  101 

163,164 

Executive,  Presidents  

II. 

1 

1 

32,.  162 

165,  166 

Electors  

II. 

1 

2 

32,  1G4 

167 

Election,  Time  

II. 

1 

3 

34,  167 

168168c 

President,  Qualifications  

II. 

1 

4 

34,  167 

169-171 

Vacancy,  Who  Succeeds  

II. 

1 

5 

34,  169 

172 

CONTENTS. 


XXI 


Art.  Sec.    Cl.      Pages.  Notes. 

Compensation,  Salary II.  1       6     34,  ]  70  173 

Oath  of  President II.  1       7     35,  170  174 

President's  Powers II.  2       1     35,  171  175-177 

Appointments,  Tenure  of  Office II.  2       2     35,174  178-184 

Vacancies,  How  filled IL  2       3     3G,  182  185, 186 

President's  Duties II.  3            36,183  187-19O 

Impeachment  Fully  Discussed II.  4            36,185  191-194 

Judicial  Power III.  1            36,  189  195-198 

Judicial  Power III.  2       1     37,  1 94  199-209 

-Jurisdiction III.  2       2     37,204  210-211 

Trial,  Crimes III.  2       3     37,209  212-214 

Treason III.  3       1     38,211  215,216 

Punishment III.  3       2     38,213  217 

Acts,  Records,  Authentication IV.  1            38,213  2*18,219 

Citizens,  Privileges,  Immunities IV.  2       1     38,222  220-222 

Fugitives  from  Justice IV.  2       2     38,229  223-225 

Fugitive  Slaves IV.  2       3     39,  232  226-228 

New  States  List  of IV.  3       1     39,  234  229, 230 

Territories j- IV.  3       2     39,238  231,232 

Republican  Government IV.  4            39,242  234-235 

Amendment V.  40,  246  236 

Debts VI.  1     40,247  237 

^Supreme  Law VI.  2     40,  247  238-241 

Oath  of  Office VI.  3     40,250  242 

Ratification,  Dates  of VII.  41,  252  243 

AMENDMENTS.  244 

Religion,  Freedom  of  Speech L  43,  254  245-248 

Militia,  Well  Regulated II.  43,  256  249 

No  Soldier  shall  be  Quartered III.  44,  256  250) 

Seizures,  Searches IV.  44,257  251,252 

Rights  Guaranteed V.  44,  258  253-259 

Criminal  Prosecutions VI.  44,  263  26O-262 

Common  Law VII.  45,266  263-265 

Excessive  Bail,  Cruel  Punishments VIII.  45,  267  266,  267 

Enumeration,  Rights IX.  45,  268  268 

Reserved  Powers X.  45,269  269 

Judicial  Powers,  States XI.  46,  269  27O-272 

President,  Electors XII.  1            46,  164  273, 168 

"              "       XII.  2            47,166  168a 


XXli  CONTENTS. 

Art.  Sec.    Cl.      Pages.  Notes. 

Vice-President,  Qualification XII.  3  47,  166  168& 

Slavery  Abolished XIII.  1  48,271  274 

Slavery.  Powers  of  Congress XIII.  2  48,  271  274 

Citizens,  Rights  guaranteed XIV.  1  48,  279  275-279 

Representatives,  Numbers XIV.  2  48,279  275-2§O 

Disqualification XIV.  3  49,279  281 

Public-Debt XIV.  4  49,280  282 

General  Powers . .                 XIV.  5  50,  280  283-285 


TABLE    OF    AITTHOKITIES    CITED    AND 
ABBKEYIATIONS   USED. 

Ab.  on  Ship Abbot  on  Shipping. 

Adams John  Adams'  Defense  of  the  American  Constitution. 

Adams  Rom.  Ant Adams'  Roman  Antiquities. 

Allen Allen's  (Mass.)  Reports. 

Ala Alabama  Reports. 

Am.  Almanac American  Almanac. 

Am.  Almanac  Rep American  Almanac  Repository. 

Am.  Jur American  Jurist. 

Am.  Lead.  C American  Leading  Cases. 

Am.  L.  J American  Law  Journal. 

Am.  L.  R American  Law  Register, 

And.  Rev.  L Andrew's  Revenue  Laws. 

Ang.  on  Tidewaters Angel  on  Tidewaters. 

Ang.  and  Ames Angel  and  Ames  on  Corporations. 

Archbold's  Law  of  Bankruptcy. 

Ash.-Ashm Ashmead's  Reports. 

Bacon's  Ab Bacon's  Abridgment. 

Bailey .Bailey's  Reports. 

Bald.  C.  C Baldwin's  Circuit  Court  Reports. 

Barb Barbour's  Reports/  /W  .7 

Barnes Barnes'  Cases  of  Practice. 

Barr Barr's  Pennsylvania  Stato  Reports. 

Bates Attorney-General,  Edward  Bates. 

Benton's  Debates Benton's  Condensed  Congressional  Debates. 

Benton's  Thirty  Years  in  the  Senate.  /p 

Bing. Bingham's  Reports^  GH 

Binn Binney's  Reports.  / 

Bevan Bevan's  Reports.  &$&*&;&    L*  GO-r> 

Bioren  and  Duane's  Laws  of  the  United  States. 

Bishop  on  Cr.  L Bishop  on  Criminal  Law. 

Black Black's  Reports. 

Blackf. Blackford's  Reports. 

B1.-B1.  Com Blackstone's  Commentaries. 

Black  wood Black  wood's  Reports.    »7, 

Blatch Blatchford's  Reports.  (A  ft  J 

Blount's  Trial. 

Breese Breese's  Reports. 

Brightly Brightly 's  Reports. 

Brightly's  Dig Brightly's  Digest  of  Laws  ofvTJ.  8. 

Brock Brockenborough's  Reports.  ^TVv.  . ) 

Burr's  Trial. 


XXIV  AUTHORITIES   AND   ABBREVIATIONS. 


Burr.-Bur Burrow's  Reports.       (  &*^Cf  &t*  ^    J 

By nkershoek Bynkershoek  on  War. 

Caine Caine's  Cases  in  Error,  (  % ^i ,) 

Calhoun's  Essay  on  Government 

Cal California  Reports. 

Call Call's  Reports. 

Camp Campbell's  Reports, 

Carth Carthevv's  Reports. 

Casey Casey's  Pennsylvania  State  Reports. 

Chase's  Trial. 

Chev Cheve's  Reports. 

Ch.  PI Chitty's  Pleadings. 

Cicero  pro  Sulla Cicero's  Oration  for  Sulla.         f^U"  ' 

Clark  &  Finnell Clark  and  Finnelly's  Reports.  ( CW*t*-*    ( 

Cl.  &  HalL Clark  and  Hall's  Reports. 

Cobb Cobb  on  Slavery. 

Cobbett's  Parliamentary  History. 

Coke Coke's  Reports. 

Co.  Litt Coke  on  Littleton.    ^^ 

Cold  well Cold  well's  Reports.  (  '&-  J 

Comst Comstock's  Reports.  /  if4 1 

Com.  Dig Comyn's  Digest         &r*->Q  •  -r  jr  /•  /  X 

Cond Peters's  Condensed  Reports,  i  *£««*•  V-,< 

Conn Connecticut  Reports.  ». 

Cow Cowen's  Reports.     ( f^fy>) 

Crabbe Crabbe's  Reports.       .  .    /    ,* 

Cr Cranch's  Reports.   ( <CC*J'  44-*  •) 

Cr.  C.  C Cranch's  Circuit  Court  Reports. 

Curt.  C.  C Curtis'  Circuit  Court  Reports. 

Curt.  Com Curtis'  Commentaries. 

Curt.  Hist Curtis'  History  of  the  Constitution. 

Curtis'  Law  of  Patents.  /2//  * '      "  '/"** 

Gush Cushing's  Reports.   (/''  fisQ^>  / 

Dall Dallas'  Reports.       /^C  «/  <f.&  J 

Daveis Daveis'  Reports. 

De  Lolme De  Lolme's  Works.  /y  / 

Den Denio's  Reports.      '^ 

Dev Devereux's  Reports. 

Dev.  &  Bat Devereux  and  Battle's  Reports. 

Doug Douglass's  Reports. 

Duane Duarie's  American  La,w.      . 

Duer Duer's  Reports. 

Duval Judge  Thomas  H.  Duval. 

Duvall Duvall's  Reports. 

Dyer Dyer's  Reports,     f/g 

East East's  Report's.    f^GZ-A^ I 

Elliot's  Deb Elliot's  Debates. 

Eng.  L.  and  Eq English  Law  and  Equity. 

Farrar Farrar  on  the  Constitution. 

Federalist. 

Finch Finch's  Reports. 

Fort Fortescue's  Reports. 


AUTHORITIES   AND   ABBREVIATIONS.  XXV 

Ga Georgia  Reports. 

Gill Gillman's  Reports. 

Gr Greene's  Reports. 

Gray Gray's  Reports. 

Greenlf.  Ev Greenleaf  s  Evidence. 

H.  &  McII Harris  amd  McIleucy's^Reportjtr 

Hagg Haggard's  Reports/  Gl^tJ  •  G&CC^t./n  /t^5^< 

Hale  P.  C Halo's  Pleas  of  the  Crown. 

Hall  ~L.  J Hall's  Law  Journal. 

Hall's  Journal Hall's  Journal  of  Jurisprudence. 

Halleck Halleck's  International  Law. 

Halst Halsted's  Reports. 

Hare Hare's  Reports. 

Harg Hargrave's  State  Trials. 

Harp Harper's  Reports. 

Harring. — Harrington . . .  Harrington's  Reports. 

Hawk Hawk's  Reports. 

Hawkins Hawkins's  Pleas  of  the  Crown. 

Hayw Hay  ward's  Reports. 

Hemphill's  Report  on  Internal  Improvements. 

Hemp Hempstead's  Reports. 

Hickey's  Const Hickey's  Constitution. 

Hill Hill's  N.  Y.  Reports. 

Hough's  Convention  Manual  of  State  Constitutions. 

How Howard's  Reports.     (^U~d , 

Humph Humphrey's  Reports. 

Hutch.'s  Hist Hutching's  History  of  New  England. 

111.  R Illinois  Reports. 

Ind.  Rep Indiana  Reports. 

Ing.  on  Hob.  Corp Ingersoll  on  Habeas  Corpus. 

Ired Iredell's  Reports. 

Jefferson's  Manual. 

Jeff.  Corresp Jefferson's  Correspondence. 

Johns Johnson's  Reports.     c  ?'{/1sf  ) 

Johns.  Ch Johnson's  Chancery  Reports/  ? ''ls,£f,  J 

Journal  of  Convention. 
Journal  of  the  Senate. 
Journal  of  the  House. 

Kent. — Kent's  Com Kent's  Commentaries. 

Kentucky  Resolutions.  . }  . 

Kern. — KernaL Kernan's  Reports.      (/Ldj  ,' 

Kirby Kirby's  Reports. 

Law  Mag Law  Magazine. 

Legal  Int Legal  Intelligencer. 

Legare Attorney-General  Lejgare. 

Leigh Leigh's  Reports.      //*t  .  / 

Lewis,  Commissioner  of  Internal  Revenue. 

Lieber Lieber's  Encyclopedia  Americana. 

Litt Littell's  Reports. 

Littleton Coke  on  Littleton. 

Lloyd's  Debates. 

Lord  King's  Life  of  Locke. 


XXV]  AUTHORITIES   AND   ABBREVIATIONS. 


M.  and  Sel Maule  and  Selwyn's  Reports. 

Mackeld's  Civ.  L Mackeld's  Civil  Law. 

M(n/na  Charia. 

Marshall's  Life  of  Washington. 

Mas. — Mas.  C.  C Mason's  Circuit  Court  Reports. 

Mass Massachusetts  Rcport&f  A  ^  / 

McAllister McAllister's  Reports.  [^£&>£  <   6$^,  "U^/,  / 

McLean McLean's  Reports. 

Md Maryland  Reports. 

Meigs Meigs's  Reports. 

Met Metcalf's  Reports. 

Miles Miles's  Reports. 

Minn Minnesota  Reports. 

Miss Mississippi  Reports. 

Mo Missouri  Reports. 

Monr Monroe's  Reports. 

Mont. — Montesq Montesquieu's  Spirit  of  Laws. 

Moore  Privy  Council. . .  .Moore's  Privy  Council  Reports. 

Mumf Mumford's  Reports. 

N.  II New  Hampshire  Reports. 

N.  Y.  Herald.  New  York  Herald. 

N.  Y.  Reports.  New  York  Reports. 

0.  Bridge  Reports Sir  Oliver  Bridge's  Reports. 

0 Ohio  Reports. 

Op Opinions  of  the  Attorney-General. 

Paige Paige's  Reports.    ('' '~ 

Paine Paine's  Reports. 

Paschal's  Annotated  Digest  of  the  Laws  of  Texas. 

Peake Peake's  Cases. 

Penn Pennington's  Reports. 

Penn.  L.  J Pennsylvania  Law  Journal. 

Penn.  State Pennsylvania  State  Reports.     .  *     i 

Pet Peters's  Reports.     C^U  ,<?  •  <?'* 

Pet.  C.  C Peters's  Circuit  Court  Reports. 

Phila.  R Philadelphia  Reports. 

Philadelphia  Ledger. 

Philliinore Phillimore's  International  Law. 

Pick Pickering's  Reports.  (//  ( O^A^.  I 

Pitk Pitkin's  History  of  the  United  States. 

Pittsburg  L.  J Pittsburg  Legal  Journal. 

Port Porter's  Reports. 

Puffendorf Puffendorfs  Works. 

Randolph Randolph's  Reports. 

Rawle Rawle's  Reports. 

Rawle's  Const Rawle  on  the  Constitution. 

Rich Richardson's  Reports.^.  * 

Salkeld Salkeld's  Reports. 

Sandf Sandford's  Reports 

S.  C Same  Case. 

Scam Scammon's  Reports. 

Sedgwick  on  Statutory  and  Constitutional  Lawy^  / 
Seld Selden's  Reports. 


AUTHORITIES   AND   ABBREVIATIONS.  XXVII 

Senate  Journal. 

Serg.  Const Sergeant  on  the  Constitution.      /  ' 

S.  &  R Sergeant  and  Rawle's  Reports.  ' 

Shep Shepley's  Reports. 

Shepherd Shepherd's  Touchstone. 

Smith Smith's  (Penn.)  Reports. 

Smith's  Leading  Cases 
Smith's  Wealth  of  Nations. 

So.  Car South  Carolina  Reports. 

Speed Attorney-General,  James  Speed. 

Spelman Spelman's  Works. 

Stanbery ^Attorney-General,  Henry  Staubery 

Stewart Stewart's  Reports. 

Stanton Attorney- General,  Edwin  Stanton. 

Story Story's  Reports. 

Story's  Conn1,  of  L Story's  Conflict  of  Laws. 

Story's  Const Story  on  the  Constitution.  L 

Story  on  Cont Story  on  Contracts.  ;   k  <//   - 

Strange Strange' s  Reports.  '(Jlsfl-jftAit  * 

Sumner's Simmer's  Reports. 

Taylor's  Civil  Law. 

Tex Texas  Reports. 

Thatcher  Cr.  C Thatcher's  Criminal  Cases. 

Tomlin's  Law  Die Tomlin's  Law  Dictionary. 

Tucker's  Black.  App Tucker's  Blackstone,  Appendix. 

Vallandigham's  Trial. 
Vattel's  Law  of  Nations. 

Verm.  R. — Vt.  R Vermont  Reports. 

Vern Vernon's  Reports. 

Ves Vesey's  Reports. 

Vesey,  Jr Vesey,  Jr.'s,  Reports^ 

Virginia  Resolutions  and  Report. 

Walker Walker's  Report. 

Wall Wallace's  Reports.        }(//  *f,  3  &  ,) 

Wall.,  Jr Wallace,  Jr.'s,  Reports.] V 

Wash.  C.  C Washington  Circuit  Court  Reports 

Watts  ". Watts  Reports. 

Webster's  Die Webster's  Dictionary. 

Webster's  Speeches.  /y/yy   / 

Wend WendeU's  Reports.     V^l 

Western  Leg.  Obsr Western  Legal  Observer. 

AVharton  La Whar ton's  Criminal  Law. 

Wharton  on  Homicides.  J  j  / 

Wh.— Wheat Wheaton's  Reports.   /  &C&  t/X*  ,y 

Wheaton's  Life  of  Pinckney. 

Wheat.  Int.  L Wheaton's  International  Law. 

Wheeler's  Law  of  Slavery. 

Whiting Whiting  on  the  War  Power. 

Wil.  M.  C Wilcock  on  Municipal  Corporations. 

Wils.  Law  Lect Wilson's  Law  Lectures. 

Will Wille's  Reports. 

Wirt Attorney- General,  William  Wirt 


XXV111         AUTHORITIES   AND   ABBREVIATIONS. 


Wis.  It "Wisconsin  Reports. 

Woodeson's  Lectures. 

Worcester's  Die Worcester's  Dictionary. 

World  Almanac. 

Yelv Yelvertou's  Reports. 

Yerg Yerger's  Reports. 

Zab.  R Zabriskie's  Reports. 


THE  DECLARATION  OF    INDEPENDENCE. 

A  Declaration  ~by  the  Representatives  of  tJie  United 
States  of  America,  in  Congress  assembled. 

WHEN,  in  the  course  of  human  events,  it  becomes 
necessary  for  one  people  to  dissolve  the  political  bands 
which  have  connected  them  with  another,  and  to 
assume,  among  the  powers  of  the  earth,  the  separate 
and  equal  station  to  which  the  laws  of  nature  and  of 
nature's  God  entitle  them,  a  decent  respect  to  the 
opinions  of  mankind  requires  that  they  should  declare 
the  causes  which  impel  them  to  the  separation. 

We  hold  these  truths  to  be  self-evident,  that  all  men 
are  created  equal ;  that  they  are  endowed  by  their 
Creator  with  certain  unalienable  rights  ;  that  among 
these,  are  life,  liberty,  and  the  pursuit  of  happiness. 
That,  to  secure  these  rights,  governments  are  instituted 
among  men,  deriving  their  just  powers  from  the  con 
sent  of  the  governed  ;  that  whenever  any  form  of 
government  becomes  destructive  of  these  ends,  it  is 
the  right  of  the  people  to  alter  or  to  abolish  it,  and  to 
institute  a  new  government,  laying  its  foundation  on 
such  principles,  and  organizing  its  powers  in  such 


2  THE  DECLARATION   OF  INDEPENDENCE. 

form',  as  to  them  shall  seem  most  likely  to  effect  their 
safety  and  happiness.  Prudence,  indeed,  will  dictate 
that  governments  long  established,  should  not  be 
changed  for  light  and  transient  causes  ;  and,  accord 
ingly,  all  experience  hath  shown,  that  mankind  are 
more  disposed  to  suffer,  while  evils  are  sufferable, 
than  to  right  themselves  by  abolishing  the  forms  to 
which  they  are  accustomed.  But,  when  a  ]ong  train  of 
abuses  and  usurpations,  pursuing  invariably  the  same 
object,  evinces  a  design  to  reduce  them  under  absolute 
despotism,  it  is  their  right,  it  is  their  duty,  to  throw  oft 
sucli  government,  and  to  provide  new  guards  for  their 
future  security.  Such  has  been  the  patient  sufferance 
of  these  colonies,  and  such  is  now  the  necessity  which 
constrains  them  to  alter  their  former  systems  of  govern 
ment.  The  history  of  the  present  king  of  Great  Britain 
is  a  history  of  repeated  injuries  and  usurpations,  all 
having,  in  direct  object,  the  establishment  of  an  ab 
solute  tyranny  over  these  States.  To  prove  this,  let 
facts  be  submitted  to  a  candid  world  : 

He  has  refused  his  assent  to  laws  the  most  whole 
some  and  necessary  for  the  public  good. 

He  has  forbidden  his  Governors  to  pass  laws  of 
immediate  and  pressing  importance,  unless  suspended 
in  their  operation  till  his  assent  should  be  obtained ; 
and,  when  so  suspended,  he  has  utterly  neglected  to 
attend  to  them. 

He  has  refused  to  pass  other  laws  for  the  accom 
modation  of  large  districts  of  people,  unless  those 


THE  DECLAKATION   OF   INDEPENDENCE.  3 

people  would  relinquish  the  right  of  representation  in 
the  legislature  ;  a  right  inestimable  to  them,  and  formi 
dable  to  tyrants  only. 

He  has-  called  together  legislative  bodies  at  places 
unusual,  uncomfortable,  and  distant  from  the  deposi 
tory  of  their  public  records,  for  the  sole  purpose  of 
fatiguing  them  into  compliance  with  his  measures. 

He  has  dissolved  representative  houses  repeatedly, 
for  opposing,  with  manly  firmness,  his  invasions  on 
the  rights  of  the  people. 

He  has  refused,  for  a  long  time  after  such  dissolu 
tions,  to  cause  others  to  be  elected  ;  whereby  the 
legislative  powers,  incapable  of  annihilation,  have 
returned  to  the  people  at  large  for  their  exercise  ;  the 
State  remaining,  in  the  mean  time,  exposed  to  all  the 
danger  of  invasion  from  without,  and  convulsions 
within. 

He  has  endeavored  to  prevent  the  population  of 
these  States ;  for  that  purpose,  obstructing  the  laws 
for  naturalization  of  foreigners  ;  refusing  to  pass  others 
to  encourage  their  migration  hither,  and  raising  the 
conditions  of  new  appropriations  of  lands. 

He  has  obstructed  the  administration  of  justice,  by 
refusing  his  assent  to  laws  for  establishing  judiciary 
powers. 

He  has  made  judges  dependent  on  his  will  alone,  for 
the  tenure  of  their  offices,  and  the  amount  and  pay 
ment  of  their  salaries. 

He  has  erected  a  multitude  of  new  offices,  and  sent 


4      THE  DECLARATION  OF  INDEPENDENCE. 

hither  swarms  of  officers  to  harass  our  people,  and  eat 
out  their  substance. 

He  has  kept  among  us,  in  times  of  peace,  standing 
armies,  without  the  consent  of  our  legislature. 

He  has  affected  to  render  the  military  independent 
of,  and  superior  to,  the  civil  power. 

He  has  combined,  with  others,  to  subject  us  to  a 
jurisdiction  foreign  to  our  constitution,  and  unac 
knowledged  by  our  laws ;  giving  his  assent  to  their 
acts  of  pretended  legislation : 

For  quartering  large  bodies  of  armed  troops  among 
us: 

For  protecting  them,  by  a  mock  trial,  from  punish 
ment,  for  any  murders  which  they  should  commit  on 
the  inhabitants  of  these  States : 

For  cutting  off  our  trade  with  all  parts  of  the  world : 

For  imposing  taxes  on  us  without  our  consent : 

For  depriving  us,  in  many  cases,  of  the  benefits  of 
trial  by  jury : 

For  transporting  us  beyond  the  seas  to  be  tried  for 
pretended  offenses : 

For  abolishing  the  free  system  of  English  laws  in  a 
neighboring  province,  establishing  therein  an  arbi 
trary  government,  and  enlarging  its  boundaries,  so  as 
to  render  it  at  once  an  example  and  fit  instrument  for 
introducing  the  same  absolute  rule  into  these  colonies  : 

For  taking  away  our  charters,  abolishing  our  most 
valuable  laws,  and  altering,  fundamentally,  the  pow 
ers  of  our  governments : 


THE  DECLARATION   OF   INDEPENDENCE.  5 

For  suspending  onr  own  legislatures,  and  declaring 
themselves  invested  with  power  to  legislate  for  us  in 
all  cases  whatsoever. 

He  has  abdicated  government  here,  by  declaring  us 
out  of  his  protection,  and  waging  war  against  us. 

He  has  plundered  our  seas,  ravaged  our  coasts, 
burnt  our  towns,  and  destroyed  the  lives  of  our 
people. 

He  is,  at  this  time,  transporting  large  armies  of 
foreign  mercenaries  to  complete  the  works  of  death, 
desolation,  and  tyranny,  already  begun,  with  circum 
stances  of  cruelty  and  perfidy  scarcely  paralleled  in 
the  most  barbarous  ages,  and  totally  unworthy  the 
head  of  a  civilized  nation. 

He  has  constrained  our  fellow-citizens,  taken  captive 
on  the  high  seas,  to  bear  arms  against  their  country,  to 
become  the  executioners  of  their  friends  and  brethren, 
or  to  fall  themselves  by  their  hands. 

He  has  excited  domestic  insurrection  amongst  us, 
and  has  endeavored  to  bring  on  the  inhabitants  of  our 
frontiers,  the  merciless  Indian  savages,  whose  known 
rule  of  warfare  is  an  undistinguished  destruction  of 
all  ages,  sexes,  and  conditions. 

In  every  stage  of  these  oppressions,  we  have  peti 
tioned  for  redress,  in  the  most  humble  terms  ;  our 
repeated  petitions  have  been  answered  only  by  re 
peated  injury.  A  prince,  whose  character  is  thus 
marked  by  every  act  which  may  define  a  tyrant,  is 
unfit  to  be  the  ruler  of  a  free  people. 


6  THE  DECLAKATION  OF  INDEPENDENCE. 

Nor  have  we  been  wanting  in  attention  to  our 
British  brethren.  We  have  warned  them,  from  time  to 
time,  of  attempts  made  by  their  legislature  to  extend 
an  unwarrantable  jurisdiction  over  us.  We  have 
reminded  them  of  the  circumstances  of  our  emigration 
and  settlement  here.  We  have  appealed  to  their 
native  justice  and  magnanimity,  and  we  have  conjured 
them,  by  the  ties  of  our  common  kindred,  to  disavow 
these  usurpations,  which  would  inevitably  interrupt 
our  connections  and  correspondence.  They,  too,  have 
been  deaf  to  the  voice  of  justice  and  consanguinity. 
We  must,  therefore,  acquiesce  in  the  necessity,  which 
denounces  our  separation,  and  hold  them,  as  we  hold 
the  rest  of  mankind,  enemies  in  war,  in  peace,  friends. 

We.  therefore,  the  representatives  of  the  UNITED 
STATES  OF  AMERICA,  in  GENERAL  CONGRESS 
assembled,  appealing  to  the  Supreme  Judge  of  the 
World  for  the  rectitude  of  our  intentions,  do,  in  the 
name,  and  by  the  authority  of  the  good  people  of  these 
colonies,  solemnly  publish  and  declare,  That  these 
United  Colonies  are,  and  of  right  ought  to  be,  FREE 
AND  INDEPENDENT  STATES  ;  that  they  are  absolved 
from  all  allegiance  to  the  British  crown,  and  that  all 
political  connection  between  them  and  the  State  of 
Great  Britain,  is,  and  ought  to  be,  totally  dissolved ; 
and  that,  as  FREE  AND  INDEPENDENT 
STATES,  they  have  full  power  to  levy  war,  conclude 
peace,  contract  alliances,  establish  commerce,  and  to 
do  all  other  acts  and  things  which  INDEPENDENT 


THE  DECLARATION  OF  INDEPENDENCE. 


STATES  may  of  right  do.  And  for  the  support  of  this 
declaration,  with  a  firm  reliance  on  the  protection  of 
DIVINE  PROVIDENCE,  we  mutually  pledge  to  each 
other,  our  lives,  our  fortunes,  and  our  sacred  honor 

The  foregoing  declaration  was,  by  order  of  Congress, 
engrossed,  and  signed  by  the  following  members  : — 


New  Hampshire. 
Josiah  Bartlett, 
William  Whip  pie, 
Matthew  Thornton. 
Massachusetts  Bay. 
Samuel  Adams, 
John  Adams, 
Robert  Treat  Paine, 
Elbridge  Gerry. 

Rhode  Island. 
Stephen  Hopkins, 
William  Ellery. 

Connecticut. 
Roger  Sherman, 
Samuel  Huntington, 
William  Wrilliams, 
Oliver  Wolcott. 

New   York. 
William  Floyd, 
Philip  Livingston, 
Francis  Lewis, 
Lewis  Morris. 

New  Jersey. 
Richard  Stockton, 
John  Witherspoon, 
Francis  Hopkinson, 


JOHN  HANCOCK. 

John  Hart, 

Abraham  Clark. 

Pennsylvania. 
Robert  Morris, 
Benjamin  Rush, 
Benjamin  Franklin, 
John  Morton, 
George  Clymer, 
James  Smith, 
George  Taylor, 
James  Wilson, 
George  Ross. 

Delaware. 
Ca3sar  Rodney, 
George  Read, 
Thomas  M'Kean. 

Maryland. 
Samuel  Chase, 
William  Paca, 
Thomas  Stone, 
Charles  Carroll,  of  Carrollton. 

Virginia. 
George  Wythe, 
Richard  Henry  Lee, 
Thomas  Jefferson, 
Benjamin  Harrison, 


8  ARTICLES   OF   CONFEDERATION. 

Virginia.  South   Carolina. 

Thomas  Kelson,  Jr.,  Edward  Rutledge, 

Francis  Lightlbot  Lee,  Thomas  Heyward,  Jr., 

Carter  Braxton.  Thomas  Lynch,  Jr., 

North  Carolina.  Arthur  Middleton. 
William  Hooper,  Georgia. 

Joseph  Hewes,  Button  Gwinnett, 

John  Penn.  Lyman  Hall, 

George  Walton. 

Resolved,  That  copies  of  the  Declaration  be  sent  to  the 
several  assemblies,  conventions,  and  committees,  or  councils 
of  safety,  and  to  the  several  commanding  officers  of  the  conti 
nental  troops ;  that  it  be  proclaimed  in  each  of  the  United 
States,  and  at  the  head  of  the  army. 


ARTICLES    OF    CONFEDERATION    AND    PER 
PETUAL  UNION  BETWEEN   THE   STATES. 

The  following  have  been  critically  compared  with 
the  original  Articles  of  Confederation  in  the  Depart 
ment  of  State,  and  found  to  conform  minutely  to  them 
in  text,  letter,  and  punctuation.  It  may  therefore  be 
relied  upon  as  a  true  copy. 

TO  ALL  TO  WHOM  THESE  PRESENTS  SHALL 
COME,  WE  THE  UNDERSIGNED  DELEGATES 
OF  THE  STATES  AFFIXED  TO  OUR  NAMES, 
SEND  GREETING.— Whereas  the  Delegates  of  the 
United  States  of  America  in  Congress  assembled  did 
on  the  15th  day  of  November  in  the  Year  of  our  Lord 
1777,  and  in  the  Second  Year  of  the  Independence  of 


AKTICLES  OF   CONFEDERATION.  9 

America  agree  to  certain  articles  of  Confederation  and 
perpetual  Union  between  the  States  of  New  Hamp 
shire,  Massachusetts-bay,  Rhode-island  and  Providence 
Plantations,  Connecticut,  New- York,  New- Jersey, 
Pennsylvania,  Delaware,  Maryland,  Virginia,  North- 
Carolina,  South-Carolina,  and  Georgia,  in  the  words 
following,  viz. 

"  ARTICLES  OF  CONFEDERATION  AND  PER 
PETUAL  UNION  BETWEEN  THE  STATES  OF 
NEW  HAMPSHIRE,  MASSACHUSETTS-BAY, 
RHODE-ISLAND  AND  PROVIDENCE  PLAN 
TATIONS,  CONNECTICUT,  NEW- YORK,  NEW- 
JERSEY,  PENNSYLVANIA,  DELAWARE, 
MARYLAND,  VIRGINIA,  NORTH-CAROLINA, 
SOUTH-CAROLINA,  AND  GEORGIA. 

ARTICLE  I.  The  Stile  of  this  confederacy  shall  be 
"  The  United  States  of  America." 

ARTICLE  II.  Each  state  retains  its  sovereignty, 
freedom  and  independence,  and  every  Power,  Juris 
diction  and  right,  which  is  not  by  this  confederation 
expressly  delegated  to  the  united  states,  in  congress 
assembled. 

ARTICLE  III.  The  said  states  hereby  severally 
enter  into  a  firm  league  of  friendship  with  each  other, 
for  their  common  defence,  the  security  of  their  Liber 
ties,  and  their  mutual  and  general  welfare,  binding 
themselves  to  assist  each  other,  against  all  force  offered 
to,  or  attacks  made  upon  them,  or  any  of  them,  on  ac 
count  of  religion,  sovereignty,  trade,  or  any  other  pre 
tence  whatever. 
i* 


10  ARTICLES   OF   CONFEDERATION". 

ARTICLE  IV.  The  better  to  secure  and  perpetuate 
mutual  friendship  and  intercourse  among  the  people 
of  the  different  states  in  this  union,  the  free  inhabitants 
of  each  of  these  states,  paupers,  vagabonds,  and  fugi 
tives  from  Justice  excepted,  shall  be  entitled  to  all 
privileges  and  immunities  of  free  citizens  in  the  several 
states  ;  and  the  people  of  each  state  shall  have  free  in 
gress  and  regress  to  and  from  any  other  state,  and  shall 
enjoy  therein  all  the  privileges  of  trade  and  commerce, 
subject  to  the  same  duties,  impositions  and  restrictions 
as  the  inhabitants  thereof  respectively,  provided  that 
such  restriction  shall  not  extend  so  far  as  to  prevent 
the  removal  of  property  imported  into  any  state,  to  any 
other  state  of  which  the  Owner  is  an  inhabitant ;  pro 
vided  also  that  no  imposition,  duties  or  restriction  shall 
be  laid  by  any  state,  on  the  property  of  the  united 
states,  or  either  of  them. 

If  any  person  guilty  of,  or  charged  with  treason, 
felony,  or  other  high  misdemeanor  in  any  state,  shall 
flee  from  Justice,  and  be  found  in  any  of  the  united 
states,  he  shall  upon  demand  of  the  Governor  or  execu 
tive  power,  of  the  state  from  which  he  fled,  be  delivered 
up  and  removed  to  the  state  having  jurisdiction  of  his 
offence. 

Full  faith  and  credit  shall  be  given  in  each  of  these 
states  to  the  records,  acts  and  judicial  proceedings  of 
the  courts  and  magistrates  of  every  other  state. 

AE-TICLE  Y.  For  the  more  convenient  management 
of  the  general  interest  of  the  united  states,  delegates 
shall  be  annually  appointed  in  such  manner  as  the  legis 
lature  of  each  state  shall  direct,  to  meet  in  congress  on 
the  first  Monday  in  November,  in  every  year,  with  a 
power  reserved  to  each  state,  to  recal  its  delegates,  or 


ARTICLES   OF   CONFEDERATION.  11 

0 

any  of  them,  at  any  time  within  the  year,  and  to  send 
others  in  their  stead,  for  the  remainder  of  the  Year. 

No  state  shall  be  represented  in  congress  by  less  than 
tAVO,  nor  by  more  than  seven  members ;  and  no  per 
son  shall  be  capable  of  being  a  delegate  for  more  than 
three  years  in  any  term  of  six  years ;  nor  shall  any 
person,  being  a  delegate,  be  capable  of  holding  any 
office  under  the  united  states,  for  which  he,  or  another 
for  his  benefit  receives  any  salary,  fees  or  emolument 
of  any  kind. 

Each  state  shall  maintain  its  own  delegates  in  any 
meeting  of  the  states,  and  while  they  act  as  members 
of  the  committee  of  the  states. 

In  determining  questions  in  the  united  states,  in  con 
gress  assembled,  each  state  shall  have  one  vote. 

Freedom  of  speech  and  debate  in  congress  shall  not 
be  impeached  or  questioned  in  any  Court,  or  place  out 
of  congress,  and  the  members  of  congress  shall  be  pro 
tected  in  their  persons  from  arrests  and  imprisonments, 
during  the  time  of  their  going  to  and  from,  and  attend 
ance  on  congress,  except  for  treason,  felony,  or  breach 
of  the  peace. 

ARTICLE  VI.  No  state  without  the  Consent  of  the 
united  states  in  congress  assembled,  shall  send  any 
embassy  to,  or  receive  any  embassy  from,  or  enter  into 
any  conference,  agreement,  alliance  or  treaty  with  any 
King  prince  or  state  ;  nor  shall  any  person  holding 
any  office  of  profit  or  trust  under  the  united  states,  or 
any  of  them,  accept  of  any  present,  emolument,  office 
or  title  of  any  kind  whatever  from  any  king,  prince  or 
foreign  state ;  nor  shall  the  united  states  in  congress 
assembled,  or  any  of  them,  grant  any  title  of  nobility . 

No  two  or  more  states  shall  enter  into  any  treaty, 


12  ARTICLES   OF   CONFEDERATION. 

confederation  or  alliance  whatever  between  them,  with 
out  the  consent  of  the  united  states  in  congress  assem 
bled,  specifying  accurately  the  purposes  for  which  the 
same  is  to  be  entered  into,  and  how  long  it  shall  con 
tinue. 

No  state  shall  lay  any  imposts  or  duties,  which  may 
interfere  with  any  stipulations  in  treaties,  entered  into 
by  the  united  states  in  congress  assembled,  with  any 
king,  prince  or  state,  in  pursuance  of  any  treaties 
already  proposed  by  congress,  to  the  courts  of  France 
and  Spain. 

No  vessels  of  war  shall  be  kept  up  in  time  of  peace 
by  any  state,  except  such  number  only,  as  shall  be 
deemed  necessary  by  the  united  states  in  congress  as 
sembled,  for  the  defence  of  such  state,  or  its  trade  ;  nor 
shall  any  body  of  forces  be  kept  up  by  any  state,  in 
time  of  peace,  except  such  number  only,  as  in  the  judg 
ment  of  the  united  states,  in  congress  assembled,  shall 
be  deemed  requisite  to  garrison  the  forts  necessary  for 
the  defence  of  such  state  ;  but  every  state  shall  always 
keep  up  a  well  regulated  and  disciplined  militia,  suffi 
ciently  armed  and  accoutred,  and  shall  provide  and 
have  constantly  ready  for  use,  in  public  stores,  a  due 
number  of  field  pieces  and  tents,  and  a  proper  quantity 
of  arms,  ammunition  and  camp  equipage. 

No  state  shall  engage  in  any  war  without  the  consent 
of  the  united  states  in  congress  assembled,  unless 
such  state  be  actually  invaded  by  enemies,  or  shall 
have  received  certain  advice  of  a  resolution  being 
formed  by  some  nation  of  Indians  to  invade  such  state, 
and  the  danger  is  so  imminent  as  not  to  admit  of  a 
delay,  till  the  united  states  in  congress  assembled 
can  be  consulted :  nor  shall  any  state  grant  commis- 


AETICLES   OF   CONFEDEKATIOtf.  13 

sions  to  any  ships  or  vessels  of  war,  nor  letters  of 
marque  or  reprisal,  except  it  be  after  a  declaration  of 
war  by  the  united  states  in  congress  assembled,  and 
then  only  against  the  kingdom  or  state  and  the  subjects 
thereof,  against  which  war  has  been  so  declared,  and 
under  such  regulations  as  shall  be  established  by  the 
united  states  in  congress  assembled,  unless  such  state 
be  infested  by  pirates,  in  which  case  vessels  of  war 
may  be  fitted  out  for  that  occasion,  and  kept  so  long  as 
the  danger  shall  continue,  or  until  the  united  states  in 
congress  assembled  shall  determine  otherwise. 

ARTICLE  VII.  When  land-forces  are  raised  by  any 
state  for  the  common  defence,  all  officers  of  or  under 
the  rank  of  colonel,  shall  be  appointed  by  the  legislature 
of  each  state  respectively  by  whom  such  forces  shall 
be  raised,  or  in  such  manner  as  such  state  shall  di 
rect,  and  all  vacancies  shall  be  filled  up  by  the  state 
which,  first  made  the  appointment. 

ARTICLE  VIII.  All  charges  of  war,  and  all  other 
expenses  that  shall  be  incurred  for  the  common  defence 
or  general  welfare,  and  allowed  by  the  united  states  in 
congress  assembled,  shall  be  defrayed  out  of  a  common 
treasury,  which  shall  be  supplied  by  the  several  states, 
in  proportion  to  the  value  of  all  land  within  each  state, 
granted  to  or  surveyed  for  any  Person,  as  such  land 
and  the  buildings  and  improvements  thereon  shall  be 
estimated  according  to  such  mode  as  the  united  states 
in  congress  assembled,  shall  from  time  to  time,  direct 
and  appoint.  The  taxes  for  paying  that  proportion 
shall  be  laid  and  levied  by  the  authority  and  direction 
of  the  legislatures  of  the  several  states  within  the  time 
,greed  upon  by  the  united  states  in  congress  assembled. 


14  ARTICLES   OF   CONFEDERATION. 

ARTICLE  IX.  The  united  states  in  congress  assem 
bled,  shall  have  the  sole  and  exclusive  right  and  power 
of  determining  on  peace  and  war,  except  in  the  cases 
mentioned  in  the  sixth  article — of  sending  and  receiv 
ing  ambassadors — entering  into  treaties  and  alliances, 
provided  that  no  treaty  of  commerce  shall  be  made 
whereby  the  legislative  power  of  the  respective  states 
shall  be  restrained  from  imposing  such  imposts  and 
duties  on  foreigners,  as  their  own  people  are  subjected 
to,  or  from  prohibiting  the  exportation  or  importation 
of  any  species  of  goods  or  commodities  whatsoever — 
of  establishing  rules  for  deciding  in  all  cases,  what 
captures  on  land  or  water  shall  be  legal,  and  in  what 
manner  prizes  taken  by  land  or  naval  forces  in  the 
service  of  the  united  states  shall  be  divided  or  appro 
priated — of  granting  letters  of  marque  and  reprisal  in 
times  of  peace — appointing  courts  for  the  trial  of  pira 
cies  and  felonies  committed  on  the  high  seas  and  estab 
lishing  courts  for  receiving  and  determining  finally 
appeals  in  all  cases  of  captures,  provided  that  no 
member  of  congress  shall  be  appointed  a  judge  of  any 
of  the  said  courts. 

The  united  states  in  congress  assembled  shall  also  be 
the  last  resort  on  appeal  in  all  disputes  and  differences 
now  subsisting  or  that  hereafter  may  arise  between 
two  or  more  states  concerning  boundary,  jurisdiction  or 
any  other  cause  whatever  ;  which  authority  shall  always 
be  exercised  in  the  manner  following.  Whenever  the 
legislative  or  executive  authority  or  lawful  agent  of 
any  state  in  controversy  with  another  shall  present  a 
petition  to  congress,  stating  the  matter  in  question  and 
praying  for  a  hearing,  notice  thereof  shall  be  given  by 
order  of  congress  to  the  legislative  or  executive  author- 


ARTICLES   OP  CONFEDERATION.  15 

ity  of  the  other  state  in  controversy,  and  a  day  assigned 
for  the  appearance  of  the  parties  "by  their  lawful  agents, 
who  shall  then  be  directed  to  appoint  by  joint  consent, 
commissioners  or  judges  to  constitute  a  court  for  hear 
ing  and  determining  the  matter  in  question  :  but  if  they 
cannot  agree,  congress  shall  name  three  persons  out  of 
each  of  the  united  states,  and  from  the  list  of  such  per 
sons  each  party  shall  alternately  strike  out  one,  the 
petitioners  beginning,  until  the  number  shall  be  reduced 
to  thirteen  ;  and  from  that  number  not  less  than  seven, 
nor  more  than  nine  names  as  congress  shall  direct,  shall 
in  the  presence  of  congress  be  drawn  out  by  lot,  and 
the  persons  whose  names  shall  be  so  drawn  or  any  five 
of  them,  shall  be  commissioners  or  judges,  to  hear  and 
finally  determine  the  controversy,  so  always  as  a  major 
part  of  the  judges  who  shall  hear  the  cause  shall  agree 
in  the  determination  :  and  if  either  party  shall  neglect 
to  attend  at  the  day  appointed,  without  showing  rea 
sons,  which  congress  shall  judge  sufficient,  or  being 
present  shall  refuse  to  strike,  the  congress  shall  proceed 
to  nominate  three  persons  out  of  each  state,  and  the 
secretary  of  congress  shall  strike  in  behalf  of  such 
party  absent  or  refusing  ;  and  the  judgment  and  sen 
tence  of  the  court  to  be  appointed,  in  the  manner  before 
prescribed,  shall  be  final  and  conclusive  ;  and  if  any 
of  the  parties  shall  refuse  to  submit  to  the  authority  of 
such  court,  or  to  appear  or  defend  their  claim  or  cause, 
the  court  shall  nevertheless  proceed  to  pronounce  sen 
tence,  or  judgment,  which  shall  in  like  manner  be  final 
and  decisive,  the  judgment  or  sentence  and  other  pro 
ceedings  being  in  either  case  transmitted  to  congress, 
and  lodged  among  the  acts  of  congress  for  the  security 
of  the  parties  concerned  :  provided  that  every  commis- 


16  AETICLES   OF   CO^FEDEKATION. 

sioner,  before  he  sits  in  judgment,  shall  take  an  oath 
to  be  administered  by  one  of  the  judges  of  the  supreme 
or  superior  court  of  the  state,  where  the  cause  shall  be 
tried,  "  well  and  truly  to  hear  and  determine  the  mat 
ter  in  question,  according  to  the  best  of  his  judgment, 
without  favour,  affection  or  hope  of  reward  :"  provided 
also  that  no  state  shall  be  deprived  of  territory  for  the 
benefit  of  the  united  states. 

All  controversies  concerning  the  private  right  of  soil 
claimed  under  different  grants  of  two  or  more  states, 
whose  jurisdictions  as  they  may  respect  such  lands, 
and  the  states  which  passed  such  grants  are  adjusted, 
the  said  grants  or  either  of  them  being  at  the  same  time 
claimed  to  have  originated  antecedent  to  such  settle 
ment  of  jurisdiction,  shall  on  the  petition  of  either 
party  to  the  congress  of  the  united  states,  be  finally 
determined  as  near  as  may  be  in  the  same  manner  as  is 
before  prescribed  for  deciding  disputes  respecting  terri 
torial  jurisdiction  between  different  states. 

The  united  states  in  congress  assembled  shall  also 
have  the  sole  and  exclusive  right  and  power  of  regula 
ting  the  alloy  and  value  of  coin  struck  by  their  own 
authority,  or  by  that  of  the  respective  states — fixing 
the  standard  of  weights  and  measures  throughout  the 
United  States — regulating  the  trade  and  managing  all 
affairs  with  the  Indians,  not  members  of  any  of  the 
states,  provided  that  the  legislative  right  of  any  state 
within  its  own  limits  be  not  infringed  or  violated — estab 
lishing  or  regulating  post-offices  from  one  state  to 
another,  throughout  all  the  united  states,  and  exacting 
such  postage  on  the  papers  passing  thro'  the  same  as 
may  be  requisite  to  defray  the  expenses  of  the  said 
office — appointing  all  officers  of  the  land  forces,  in  the 


ARTICLES   OF   CONFEDERATION.  17 

service  of  the  united  states,  excepting  regimental 
officers — appointing  all  the  officers  of  the  naval  forces, 
and  commissioning  all  officers  whatever  in  the  service 
of  the  united  states — making  rules  for  the  government 
and  regulation  of  the  said  land  and  naval  forces,  and 
directing  their  operations. 

The  united  states  in  congress  assembled  shall  have 
authority  to  appoint  a  committee,  to  sit  in  the  recess 
of  congress,  to  be  denominated  ' '  A  Committee  of  the 
States, ' '  and  to  consist  of  one  delegate  from  each  state  ; 
and  to  appoint  such  other  committees  and  civil  officers 
as  maybe  necessary  for  managing  the  general  affairs  of 
the  united  states  under  their  direction — to  appoint  one 
of  their  number  to  preside,  provided  that  no  person  be 
allowed  to  serve  in  the  office  of  president  more  than 
one  year  in  any  term  of  three  years ;  to  ascertain  the 
necessary  sums  of  Money  to  be  raised  for  the  service 
of  the  united  states,  and  to  appropriate  and  apply  the 
same  for  defraying  the  public  expenses — to  borrow 
money,  or  emit  bills  on  the  credit  of  the  united  states, 
transmitting  every  half  year  to  the  respective  states  an 
account  of  the  sums  of  money  so  borrowed  or  emitted, — • 
to  build  and  equip  a  navy — to  agree  upon  the  number 
of  land  forces,  and  to  make  requisitions  from  each  state 
for  its  quota,  in  proportion  to  the  number  of  white 
inhabitants  in  such  state ;  which  requisition  shall  be 
binding,  and  thereupon  the  legislature  of  each  state 
shall  appoint  the  regimental  officers,  raise  the  men  and 
cloath,  arm  and  equip  them  in  a  soldier  like  manner,  at 
the  expense  of  the  united  states ;  and  the  officers  and 
men  so  cloathed,  armed  and  equipped  shall  march  to 
the  place  appointed,  and  within  the  time  agreed  on  by 
the  united  states  in  congress  assembled :  But  if  the 


18  ARTICLES   OP   CONFEDERATION. 

united  states  in  congress  assembled  shall,  on  consi 
deration  of  circumstances  judge  proper  that  any  state 
should  not  raise  men,  or  should  raise  a  smaller  number 
than  its  quota,  and  that  any  other  state  should  raise  a 
greater  number  of  men  than  the  quota  thereof,  such 
extra  number  shall  be  raised,  officered,  cloathed,  armed 
and  equipped  in  the  same  manner  as  the  quota  of  such 
state,  unless  the  legislature  of  such  state  shall  judge 
that  such  extra  number  cannot  be  safely  spared  out  of 
the  same,  in  which  case  they  shall  raise,  officer,  cloath, 
arm  and  equip  as  many  of  such  extra  number  as  they 
judge  can  be  safely  spared.  And  the  officers  and  men 
so  cloathed,  armed  and  equipped,  shall  march  to  the 
place  appointed,  and  within  the  time  agreed  on  by  the 
united  states  in  congress  assembled. 

The  united  states  in  congress  assembled  shall  never 
engage  in  a  war,  nor  grant  letters  of  marque  and  repri 
sal  in  time  of  peace,  nor  enter  into  any  treaties  or 
alliances,  nor  coin  money,  nor  regulate  the  value 
thereof,  nor  ascertain  the  sums  and  expenses  necessary 
for  the  defence  and  welfare  of  the  united  states,  or  any 
of  them,  nor  emit  bills,  nor  borrow  money  on  the 
credit  of  the  united  states,  nor  appropriate  money,  nor 
agree  upon  the  number  of  vessels  of  war,  to  be  built 
or  purchased,  or  the  number  of  land  or  sea  forces  to  be 
raised,  nor  appoint  a  commander  in  chief  of  the  army 
or  navy,  unless  nine  states  assent  to  the  same  :  nor  shall 
a  question  on  any  other  point,  except  for  adjourning 
from  day  to  day  be  determined,  unless  by  the  votes  of 
a  majority  of  the  united  states  in  congress  assembled. 

The  Congress  of  the  united  states  shall  have  power 
to  adjourn  to  any  time  within  the  year,  and  to  any 
place  within  the  united  states,  so  that  no  period  of 


AETICLES   OF   CONFEDERATION.  19 

adjournment  be  for  a  longer  duration  than  the  space  of 
six  months,  and  shall  publish  the  Journal  of  their  pro 
ceedings  monthly,  except  such  parts  thereof  relating 
to  treaties,  alliances  or  military  operations,  as  in  their 
j  udgment  require  secrecy  ;  and  the  yeas  and  nays  of 
the  delegates  of  each  state  on  any  question  shall  be 
entered  on  the  Journal,  when  it  is  desired  by  any  dele 
gate  ;  and  the  delegates  of  a  state,  or  any  of  them,  at 
his  or  their  request  shall  be  furnished  with  a  transcript 
of  the  said  Journal,  except  such  parts  as  are  above 
excepted,  to  lay  before  the  legislatures  of  the  several 
states. 

ARTICLE  X.  The  committee  of  the  states,  or  any 
nine  of  them,  shall  be  authorized  to  execute,  in  the 
recess  of  congress,  such  of  the  powers  of  congress  as 
the  united  states  in  congress  assembled,  by  the  consent 
of  nine  states,  shall  from  time  to  time  think  expedient 
to  vest  them  with  ;  provided  that  no  power  be  delegated 
to  the  said  committee,  for  the  exercise  of  which,  by  the 
articles  of  confederation,  the  voice  of  nine  states  in  the 
congress  of  the  united  states  assembled  is  requisite. 

ARTICLE  XL  Canada  acceding  to  this  confedera 
tion,  and  joining  in  the  measures  of  the  united  states, 
shall  be  admitted  into,  and  entitled  to  all  the  advantages 
of  this  union :  but  no  other  colony  shall  be  admitted 
into  the  same,  unless  such  admission  be  agreed  to  by 
nine  states. 

ARTICLE  XII.  All  bills  of  credit  emitted,  monies 
borrowed  and  debts  contracted  by,  or  under  the  author 
ity  of  congress,  before  the  assembling  of  the  united 
states,  in  pursuance  of  the  present  confederation,  shall 
be  deemed  and  considered  as  a  charge  against  the  united 


20  ARTICLES    OF   CONFEDEEATIOtf. 

states,  for  payment  and  satisfaction  whereof  the  said 
united  states,  and  the  public  faith  are  hereby  solemnly 
pledged. 

ARTICLE  XIII.  Every  state  shall  abide  by  the 
determinations  of  the  united  states  in  congress  assem 
bled,  on  all  questions  which  by  this  confederation  is 
submitted  to  them.  And  the  Articles  of  this  confedera 
tion  shall  be  inviolably  observed  by  every  state,  and 
the  union  shall  be  perpetual ;  nor  shall  any  alteration 
at  any  time  hereafter  be  made  in  any  of  them  ;  unless 
such  alteration  be  agreed  to  in  a  congress  of  the  united 
states,  and  be  afterwards  confirmed  by  the  legislatures 
of  every  state. 

And  Whereas  it  hath  pleased  the  Great  Governor  of 
the  World  to  incline  the  hearts  of  the  legislatures  we 
respectively  represent  in  congress,  to  approve  of,  and 
to  authorize  us  to  ratify  the  said  articles  of  confedera 
tion  and  perpetual  union.  Know  Ye  that  we  the  under 
signed  delegates,  by  virtue  of  the  power  and  authority 
to  us  given  for  that  purpose,  do  by  these  presents,  in 
the  name  and  in  behalf  of  our  respective  constituents, 
fully  and  entirely  ratify  and  confirm  each  and  every  of 
the  said  articles  of  confederation  and  perpetual  union, 
and  all  and  singular  the  matters  and  things  therein  con 
tained  :  And  we  do  further  solemnly  plight  and  engage 
the  faith  of  our  respective  constituents,  that  they  shall 
abide  by  the  determinations  of  the  united  states  in  con 
gress  assembled,  on  all  questions,  which  by  the  said 
confederation  are  submitted  to  them.  And  that  the 
articles  thereof  shall  be  inviolably  observed  by  the 
states  we  respectively  represent,  and  that  the  union 
shall  be  perpetual.  In  witness  whereof  we  have  here 
unto  set  our  hands  in  Congress.  Done  at  Philadelphia 


ARTICLES   OF   CONFEDERATION. 


in  the  state  of  Pennsylvania  the  9th  Day  of  July  in 
the  Year  of  our  Lord,  1778,  and  in  the  3d  year  of  the 
Independence  of  America. 


Josiah  Bartlett, 

John  Hancock, 
Samuel  Adams, 
Elbridge  Gerry, 

William  Ellery, 
Henry  Marchunt, 

Roger  Sherman, 
Samuel  Huntington, 
Oliver  Wolcott, 

Ja?.  Duane, 
Fras  Lewis, 

Jn°  Witherspoon, 


John  Wentworth,  jun. 
August  8th,  1778, 

Francis  Dana, 
James  Lovell, 
Samuel  Holten, 

John  Collins, 


Titus  Hosmer, 
Andrew  Adam, 

William  Duer, 
Gouvr  Morris, 

Nath1  Scudder, 


Robf  Morris,  William  Clingnn, 

Daniel  Roberdeau,  Joseph  Reed, 

Jona  Bayard  Smith,  22d  July,  1778, 

Tho.  M'Kean,  Feb.  12, 1779,  Nicholas  Van  Dyke, 
John  Dickinson,  May  5,  1779, 

John  Hanson,  Daniel  Carroll, 

March  1st,  1781,  March  1st,  1781, 


Richard  Henry  Lee, 
John  Banister, 
Thomas  Adams, 

John  Penn, 

July  21st,  1778, 

Henry  Laurens, 
William  Henry  Drnyton, 
Jn°  Matthews, 
Jn°  Walton, 

24th  July,  1778, 


Jn°  Harvie, 

Francis  Lightfoot  Lee, 

Corns  Harnett, 
Jn°  Williams, 

Richd  Hutson, 
Thos.  Heyward,  jun. 

Edwd  Telfair, 
Edwd  Lang  worthy, 


}  On  the  part  and  behalf 
v  of  the  state  of  New 
)  Hampshire. 

On  the  part  and  behalf 
of  the  state  of  Mas- 
sachusettsvBay. 

On  the  part  and  behalf 
of  the  State  of  Rhode- 
Island  and  Providence 
Plantations. 

On  the  part  and  behalf 
of  the  state  of  Con 
necticut. 

On  the  part  and  behalf 
of  the  state  of  New. 
York. 

On  the  part  and  behalf  of 
the  state  of  New-Jer 
sey,  Nov.  26th,  1778. 

On  the  part  and  behalf 
of  the  state  of  Penn 
sylvania. 

On  the  part  and  behalf 
of  the  state  of  Dela 
ware. 

On  the  part  and  behalf 
of  the  state  of  Mary 
land. 

On  the  part  and  behalf 
of  the  state  of  Vir 
ginia. 

On  the  part  and  behalf 
of  the  state  of  North. 
Carolina. 

On  the  part  and  behalf 
of  the  state  of  South- 
Carolina. 

On  the  part  and  behalf 
of  the  state  of  Georgia 


CONSTITUTION 

OF  TUB 

UNITED  STATES  OF  AMERICA. 


WE  the  People  of  the  United  States,  in  order  to  forir 
a  more  perfect  Union,  establish  Justice,  insure  domes 
tic  Tranquillity,  provide  for  the  common  defence, 
promote  the  general  Welfare,  and  secure  the  Bles 
sings  of  Liberty  to  ourselves  and  our  Posterity,  do 
ordain  and  establish  this  CONSTITUTION  for  the  United 
States  of  America, 

ARTICLE.  I. 

SECTION.  1.  All  legislative  Powers  herein  granted 
shall  be  vested  in  a  Congress  of  the  United  States, 
which  shall  consist  of  a  Senate  and  House  of  Repre 
sentatives. 

SECTION.  2.  'The  House  of  Representatives  shall 
be  composed  of  Members  chosen  every  second  Year  by 
the  People  of  the  several  States,  and  the  Electors  in  each 
State  shall  have  the  Qualifications  requisite  for  Electors 
of  the  most  numerous  Branch  of  the  State  Legislature. 


CONSTITUTION   OF  THE  UNITED   STATES.  23 

3  No  Person  shall  be  a  Representative  who  shall  not 
have  attained  to  the  Age  of  twenty  five  Years,  and  been 
seven  Years  a  Citizen  of  the  United  States,  and  who  shall 
not,  when  elected,  be  an  Inhabitant  of  that  State  in  ; 
which  he  shall  be  chosen. 

3  Representatives  and  direct  Taxes  shall  be  appor 
tioned  among  the  several  States  which  may  be  included 
within  this  Union,  according  to  their  respective  Num 
bers,  which  shall  be  determined  by  adcjjnp  to  thft 
whole  Number  of  free  Persons,  including  those  bound 
fcTService  for  a  Term  of  Years,  and  excluding  Indians  -^ 
not  taxed,  three  fifths  of  all  other  Perso'ns.^Lh^ctuS[ 
Enumeration  shall  be  made  within  three  Years  after 
the  first  Meeting  of  the  Congress  of  the  United  States, 
and  within  every  subsequent  Term  of  ten  Years,  in 
such  Manner  as  they  shall  by  Law  direct.  The  Num 
ber  of  Representatives  shall  not  exceed  one  for  every 
thirty  Thousand,  but  each  State  shall  have  at  Least 
one  Representative  ;  fliTJjTrtjl  snnh  pn  n  memtiori  shall 
be  made,  the  State_pfNew  Hampshire  shall  be  entitled 
to  chuse^  three,  Massachusetts  eight,  Rhode-  Island  and 

Providence    PI  an  ff>  firms    nnpj    f!r>rm^otinnt   fryp,, 

York  six,  New  Jersey  four,  Pennsylvania  eight, 
~ware  one,  Maryland  six,  Virginia  ten,  North  Carolin 

,  South 


vacancies  happen  in  the  Representation  from 
any  State,  the  Executive  Authority  thereof  shall  issue 
Writs  of  Election  to  fill  such  Vacancies. 
6  The  House  of   Representatives  shall  chuse  their 


24  CONSTITUTION   OF  THE    UNITED   STATES. 

Speaker  and  other  Officers  ;  and  shall  have  the  sole 
Power  of  Impeachment. 

SECTION.  3.  ^The  Senate  of  theJJnited  States  shall 
be  composed  of  two  Senators  from  f>fl,o,h  State,  choaen. 
by  the  Legislature  thereof,  for  six  Years ;  and  each 
Senator~shall  have  one  vote. 


M' 

A  (*• 
M  * 


5  Immediately  after  they  shall  "be  assembled  in  Conse 
quence  of  the  first  Election,  they  shall  be  divided  as 
equally  as  may  be  into  three  Classes.     The  Seats  of  the 
Senators  of  the  first  Class  shall  be  vacated  at  the  Ex 
piration  of  the  second  Year,  of  the  second  Class  at  the 
Expiration  of  the  fourth  Year,  and  of  the  third  class  at 
the  Expiration  of  the  sixth  Year,  so  that  one-third  may 
be  chosen  every  second  Year  ;  and  if  Yacancies  happen 
by  Resignation,  or  otherwise,  during  the  Eecess  ofjhe 

ature^oT  any  j?tate,  the  Egecutiye  thereof  may 
make  temporary  Appointments  until  the  next  Meeting 
of  the  Legislature,  which  shall  then  fill  such  Yacancies. 

"No  Person  shall  be  a  Senator  who  shall  not  have 
attained  to  the  Age  of  thirty  Years,  and  been  nine 
Years  a  Citizen  of  the  United  States,  and  who  shall 
not,  when  elected,  be  an  Inhabitant  of  that  State  for 
which  he  shall  be  chosen. 

4  The  Yice  President  of  the  United  States  shall  be 
President  of  the  Senate,  but  shall  have  no  Vote,  unless 
they  be  equally  divided. 

6  The  Senate  shall  chuse  their  other  Officers,  and  also 
a  President  pro  tempore,  in  the  Absence  of  the  Yice 


CONSTITUTION   OF  THE   UNITED   STATES.  25 

President,  or  when  he  shall  exercise  the  Office  of  Pre 
sident  of  the  United  States. 

0  The  Senate  shall  have  the  sole  Power  to  try  all 
Impeachments.  When  sitting  for  that  Purpose,  they 
shall  "be  on  Oath  or  Affirmation.  "When  the  President 
of  the  United  States  is  tried,  the  Chief  Justice  shall 
preside  :  And  no  Person  shall  "be  convicted  without 
the  Concurrence  of  two  thirds  of  the  Members  present. 

'Judgment  in  Cases  of  Impeachment  shall  not  extend 
further  than  to  removal  from  Office,  and  Disqualifica 
tion  to  hold  and  enjoy  any  Office  of  honour,  Trust  or 
Profit  under  the  United  States :  "but  the  Party  con 
victed  shall  nevertheless  "be  liable  and  subject  to 
Indictment,  Trial,  Judgment  and  Punishment,  accord 
ing  to  Law. 

SECTION.  4.  JThe  Times,  Places  and  Manner  of 
holding  Elections  for  Senators  and  Representatives, 
shall  be  prescribed  in  each  State  by  the  Legislature 
thereof ;  but  the  Congress  may  at  any  time  by  Law 
make  or  alter  such  Regulations,  except  as  to  the  places 
of  chusing  Senators. 

3  The  Congress  shall  assemble  at  least  once  in  every 
Year,  and  such  Meeting  shall  be  on  the  first  Monday 
in  December,  unless  they  shall  by  Law  appoint  a 
different  Day. 

SECTION.  5.  J  Each  House  shall  be  the  Judge  of  the 
Elections,  Returns  and  Qualifications  of  its  own  Mem 
bers,  and  a  Majority  of  each  shall  constitute  a  Quorum 


26  CONSTITUTION   OF  THE   UNITED   STATES. 

to  Business  ;  but  a  smaller  Number  may  adjourn 
from  day  to  day,  and  may  be  authorized  to  compel  the 
Attendance  of  absent  Members,  in  such  Manner,  and 
under  such  Penalties  as  each  House  may  provide. 

3  Each  House  may  determine  the  Rules  of  its  Proceed 
ings,   punish  its  Members  for  disorderly  Behaviour, 
and,   with  the  Concurrence  of    two  thirds,    expel  a 
Member. 

8  Each  House  shall  keep  a  Journal  of  its  Proceedings, 
and  from  time  to  time  publish  the  same,  excepting  such 
Parts  as  may  in  their  Judgment  require  Secrecy  ;  and 
the  Yeas  and  Nays  of  the  Members  of  either  House  on 
any  question  shall,  at  the  Desire  of  one  fifth  of  those 
Present,  be  entered  on  the  Journal. 

4  Neither  House,  during  the   Session    of  Congress, 
shall,  without  the  Consent  of  the  other,  adjourn  for 
more  than  three  days,  nor  to  any  other  Place  than  that 
in  which  the  two  Houses  shall  be  sitting. 

SECTION.  6.  ]  The  Senators  and  Representatives 
shall  receive  a  Compensation  for  their  Services,  to  be 
ascertained  by  Law,  and  paid  out  of  the  Treasury  of 
the  United  States.  They  shall  in  all  Cases,  except 
Treason,  Felony  and  Breach  of  the  Peace,  be  privi 
leged  from  Arrest  during  their  Attendance  at  the  Ses 
sion  of  their  respective  Houses,  and  in  going  to  and 
returning  from  the  same ;  and  for  any  Speech  or 
Debate  in  either  House,  they  shall  not  be  questioned 
in  any  other  Place. 


CONSTITUTION   OF  THE   UNITED   STATES.  27 

Senator  or  Representative  shall,  during  the 
Time  for  which  he  was  elected,  be  appointed  to  any 
civil  Office  under  the.  Authority  of  the  United  States, 
which  shall  have  been  created,  or  the  Emoluments 
whereof  shall  have  been  encreased  during  such  time  ; 
and  no  Person  holding  any  Office  under  the  United 
States,  shall  be  a  Member  of  either  House  during  his 
Continuance  in  Office. 

SECTION.  7.  '  All  Bills  for  raising  Revenue  shall 
originate  in  the  House  of  Representatives  ;  but  the 
Senate  may  propose  or  concur  with  Amendments  as  on 
other  Bills. 

2  Every  Bill  which  shall  have  passed  the  House  of 
Representatives  and  the  Senate,  shall,  before  it  become 
a  Law,  be  presented  to  the  President  of  the  United 
States  ;  If  he  approve  he  shall  sign  it,  but  if  not  he 
shall  return  it,  with  his  Objections  to  that  House  in 
which  it  shall  have  originated,  who  shall  enter  the  Ob 
jections  at  large  on  their  Journal,  and  proceed  to 
reconsider  it.  If  after  such  Reconsideration  two  thirds 
of  that  House  shall  agree  to  pass  the  Bill,  it  shall  be 
sent,  together  with  the  Objections,  to  the  other  House, 
by  which  it  shall  likewise  be  reconsidered,  and  if  ap 
proved  by  two  thirds  of  that  House,  it  shall  become  a 
Law.  But  in  all  such  Cases  the  Votes  of  both  Houses 
shall  be  determined  by  yeas  and  Nays,  and  the  Names 
of  the  Persons  voting  for  and  against  the  Bill  shall  be 
entered  on  the  Journal  of  each  House  respectively.  If 


28  CONSTITUTION   OF  THE   UNITED   STATES. 

any  Bill  shall  not  be  returned  by  the  President  within 
ten  Days  (Sundays  excepted)  after  it  shall  have  been 
presented  to  him,  the  Same  shall  be  a  law,  in  like 
Manner  as  if  he  had  signed  it,  unless  the  Congress  by 
their  Adjournment  prevent  its  Return,  in  which  Case 
it  shall  not  be  a  Law. 

3  Every  Order,  Resolution,  or  Vote  to  which  the  Con 
currence  of  the  Senate  and  House  of  Representatives 
may  be  necessary  (except  on  a  question  of  Adjourn 
ment)  shall  be  presented  to  the  President  of  the  United 
States  ;  and  before  the  Same  shall  take  Effect,  shall  be 
approved  by  him,  or  being  disapproved  by  him,  shall 
be  repassed  by  two  thirds  of  the  Senate  and  House  of 
Representatives,  according  to  the  Rules  and  Limita 
tions  prescribed  in  the  Case  of  a  Bill. 

SECTION.  8.  The  Congress  shall  have  Power 
1  To  lay  and  collect  Taxes,  Duties,  Imposts  and  Ex 
cises  ;  to  pay  the  Debts  and  provide  for  the  common 
Defence  and  general  Welfare  of  the  United  States  ;  but 
all  Duties,  Imposts  and  Excises  shall  be  uniform 
throughout  the  United  States  ; 

3  To    borrow  Money  on  the  credit  of   the  United 
States  ; 

8  To  regulate  Commerce  with  foreign  Nations,  and 
among  the  several  States,  and  with  the  Indian  Tribes  ; 

4  To  establish  an  uniform  Rule  of  Naturalization,  and 
uniform  Laws  on  the  subject  of  Bankruptcies  through 
out  the  United  States  ; 


CONSTITUTION   OF  THE   UNITED   STATES.  29 

6  To  coin  Money,  regulate  the  Yalue  thereof,  and  of 
foreign  Coin,  and  fix  the  Standard  of  Weights  and 
Measures  ; 

6  To  provide  for  the  Punishment  of  counterfeiting  the 
Securities  and  current  Coin  of  the  United  States  ; 

7  To  establish  Post  Offices  and  post  Roads  ; 

8  To  promote  the  progress  of  Science  and  useful  Arts, 
"by  securing  for  limited  Times  to  Authors  and  Invent 
ors  the  exclusive  Right  to  their  respective  Writings 
and  Discoveries ; 

'To  constitute  Tribunals  inferior  to  the  supreme 
Court ; 

"To  define  and  punish  Piracies  and  Felonies  com 
mitted  on  the  high  Seas,  and  Offences  against  the  Law 
of  Nations ; 

11  To  declare  War,  grant  Letters  of  Marque  and  Re 
prisal,  and  make  Rules  concerning  Captures  on  Land 
and  Water ; 

13  To  raise  and  support  Armies,  but  no  Appropriation 
of  Money  to  that  Use  shall  be  for  a  longer  Term  than 
two  Years  ; 

13  To  provide  and  maintain  a  Navy  ; 

14  To  make  Rules  for  the  Government  and  Regulation 
of  the  land  and  naval  Forces  ; 

15  To  provide  for  calling  forth  the  Militia  to  execute 
the  Laws  of  the  Union,  suppress  Insurrections  and 
repel  Invasions ; 

10  To  provide  for  organizing,  arming,  and  disciplining, 
the  Militia,  and  for  governing  such  Part  of  them  as  may 


30  CONSTITUTION    OF  THE   UNITED    STATES. 

be  employed  in  the  Service  of  the  United  States,  reserv 
ing  to  the  States  respectively,  the  Appointment  of  the 
Officers,  and  the  Authority  of  training  the  Militia  accord 
ing  to  the  Discipline  prescribed  by  Congress  ; 

17  To  exercise  exclusive  Legislation  in  all  Cases  what 
soever,  over  such  District  (not  exceeding  ten  Miles 
square)  as  may,  by  Cession  of  particular  States,  and 
the  Acceptance  of  Congress,  become  the  Seat  of  the 
Government  of  the  United  States,  and  to  exercise  like 
Authority  over  all  Places  purchased  by  the  Consent 
of  the  Legislature  of  the  State  in  which  the  Same  shall 
be,  for  the  Erection  of  Forts,   Magazines,    Arsenals, 
Dock- Yards,  and  other  needful  Buildings  ; — And 

18  To  make  all  Laws  which  shall  be  necessary  and 
proper  for  carrying  into  Execution  the  foregoing  Powers, 
and  all  other  Powers  vested  by  this  Constitution  in  the 
Government  of  the  United  States,  or  in  any  Department 
or  Officer  thereof. 

I 

ION.  9.     '  The  Migration  or  Importation  of  such. 

s  as  any  of  the  States  now  existing  shall  think 
proper  to  admit,  shall  not  be  prohibited  by  the  Con 
gress  prior  to  the  Year  one  thousand  eight  hundred 
and  eight,  but  a  Tax  or  Duty  may  be  imposed  on  such 
Importation,  not  exceeding  ten  dollars  for  each  Per 
son. 

2  The  Privilege  of  the  Writ  of  Habeas  Corpus  shall 
not  be  suspended,  unless  when  in  Cases  of  Rebellion  or 
Invasion  the  public  Safety  may  require  it. 


CONSTITUTION"  OF  THE  UNITED   STATES.  31 

9  No  Bill  of  Attainder  or  ex  post  facto  Law  shall  "be 
passed. 

*  No  Capitation,  or  other  direct,  Tax  shall  be  laid, 
unless  in  Proportion  to  the  Census  or  Enumeration 
herein  before  directed  to  be  taken. 

"No  Tax  or  Duty  shall  be  laid  on  Articles  exported 
from  any  State. 

°No  Preference  shall  be  given  by  any  Regulation  of 
Commerce  or  Revenue  to  the  Ports  of  one  State  over 
those  of  another :  nor  shall  Vessels  bound  to,  or  from, 
one  State,  be  obliged  to  enter,  clear,  or  pay  Duties  in 
another. 

7  No  Money  shall  be  drawn  from  the  Treasury,  but 
in  Consequence  of  Appropriations  made  by  Law  ;  and 
a  regular  Statement  and  Account  of  the  Receipts  and 
Expenditures  of  all  public  Money  shall  be  published 
from  time  to  time. 

8  No  Title  of  Nobility  shall  be  granted  by  the  United 
States :  And  no  Person  holding  any  Office  of  Profit  or 
Trust  under  them,  shall,  without  the  Consent  of  the 
Congress,  accept  of  any  present,  Emolument,  Office,  or 
Title,  of  any  kind  whatever,  from  any  King,  Prince,  or 
foreign  State. 

SECTION.  10.  l  No  State  shall  enter  into  any  Treaty, 
Alliance,  or  Confederation  ;  grant  Letters  of  Marque 
arid  Reprisal ;  coin  Money  ;  emit  Bills  of  Credit ;  make 
any  Thing  but  gold  and  silver  Coin  a  Tender  in  Pay 
ment  of  Debts ;  pass  any  Bill  of  Attainder,  ex  post 


32  CONSTITUTION   OF  TIIK    UNITED   STATES. 

i'acto  Law,  or  Law  impairing  the  Obligation  of  Con 
tracts,  or  grant  any  Title  of  Nobility. 

2  No  State  shall,  without  the  consent  of  the  Congress, 
lay  any  Imposts  or  Duties  on  Imports  or  Exports,  ex 
cept  what  may  be  absolutely  necessary  for  executing 
it's  inspection  Laws  :  and  the  net  Produce  of  all  Duties 
and  Imposts,  laid  by  any  State  on  Imports  or  Exports, 
shall  be  for  the  Use  of  the  Treasury  of  the  United 
States  ;  and  all  such  Laws  shall  be  subject  to  the  Revi 
sion  and  Controul  of  the  Congress. 

8  No  State  shall,  without  the  Consent  of  Congress, 
lay  any  Duty  of  Tonnage,  keep  Troops,  or  Ships  of 
War  in  time  of  Peace,  enter  into  any  Agreement  or 
Compact  with  another  State,  or  with  a  foreign  Power, 
or  engage  in  War,  unless  actually  invaded,  or  in  such 
imminent  Danger  as  will  not  admit  of  Delay. 

ARTICLE.  II. 

SECTION.  1.  *  The  executive  Power  shall  be  vested 
in  a  President  of  the  United  States  of  America.  He 
shall  hold  his  Office  during  the  Term  of  four  Years, 
and,  together  with  the  Yice  President,  chosen  for  the 
same  Term,  be  elected,  as  follows 

;2  Each  State  shall  appoint,  in  such  Manner  as  the 
Legislature  thereof  may  direct,  a  Number   of   Elec- 
;ors,  equal  to    the  whole  Number  of    Senators  and 
\    Representatives  to  which  the   State  may  be  entitled 
\4n  the  Congress:  but  no  Senator  or  Representative, 


CONSTITUTION   OF  THE   UNITED   STATES.  33 

or  Person  holding  an  Office  of  Trust  or  Profit  under 
the  United  States,  shall  be  appointed  an  Elector. 

The  Electors  shall  meet  in  their  respective  States, 
and  vote  "by  Ballot  for  two  Persons,  of  whom. one  at 
least  shall  not  be  an  Inhabitant  of  the  same  State  with 
themselves.  And  they  shall  make  a  List  of  all  the 
Persons  voted  for,  and  of  the  Number  of  Votes  for 
each  ;  which  List  they  shall  sign  and  certify,  and 
transmit  sealed  to  the  Seat  of  the  Government  of  the 
United  States,  directed  to  the  President  of  the  Senate. 
The  President  of  the  Senate  shall,  in  the  Presence  of 
the  Senate  and  House  of  Representatives,  open  all  the 
Certificates,  and  the  Votes  shall  then  be  counted. 
The  Person  having  the  greatest  Number  of  Votes 
shall  be  the  President,  if  such  Number  be  a  Major 
ity  of  the  whole  Number  of  Electors  appointed ;  and 
if  there  be  more  than  one  who  have  such  Majority, 
and  have  an  equal  Number  of  Votes,  then  the  House 
of  Representatives  shall  immediately  chuse  by  Ballot 
one  of  them  for  President ;  and  if  no  Person  have  a 
Majority,  then  from  the  five  highest  on  the  List  the 
said  House  shall  in  like  Manner  chuse  the  President. 
But  in  chusing  the  President,  the  Votes  shall  be  taken 
by  States,  the  Representation  from  each  State  having 
one  Vote  ;  A  Quorum  for  this  Purpose  shall  consist  of 
a  Member  or  Members  from  twothirds  of  the  States, 
and  a  Majority  of  all  the  States  shall  be  necessary  to  a 
Choice.  In  every  Case,  after  the  Choice  of  the  Presi 
dent,  the  Person  having  the  greatest  Number  of  Votes 


34  CONSTITUTION   OF  THE   UNITED   STATES. 

of  the  Electors  shall  be  the  Vice  President.  But  if 
there  should  remain  two  or  more  who  have  equal 
Votes,  the  Senate  shall  clause  from  them  by  Ballot  the 
Vice  President. 

8  The  Congress  may  determine  the  Time  of  chusing 
the  Electors,  and  the  Day  on  which  they  shall  give 
their  Votes  ;  which  Day  shall  be  the  same  throughout 
the  United  States. 

4  JSTo  Person  except  a  natural  born  Citizen,  or  a  Citizen 
of  the  United  States,  at  the  time  of  the  Adoption  of  this 
Constitution,  shall  be  eligible  to  the  Office  of  President ; 
neither  shall  any  Person  be  eligible  to  that  Office  who 
shall  not  have  attained  to  the  Age  of  thirty  five  Years, 
and  been  fourteen  Years  a  Kesident  within  the  United 
States. 

6  In  Case  of  the  Removal  of  the  President  from  Office, 
or  of  his  Death,  Resignation,  or  Inability  to  dis 
charge  the  Powers  and  Duties  of  the  said  Office,  the 
same  shall  devolve  on  the  Vice  President,  and  the  Con 
gress  may  by  Law  provide  for  the  Case  of  Removal, 
Death,  Resignation,  or  Inability,  both  of  the  President 
and  Vice  President,  declaring  what  Officer  shall  then 
act  as  President,  and  such  Officer  shall  act  accordingly, 
until  the  Disability  be  removed,  or  a  President  shall 
be  elected. 

8  The  President  shall,  at  stated  Times,  receive  for 
his  Services,  a  Compensation,  which  shall  neither  be 
encreased  nor  diminished  during  the  Period  for  which 
he  shall  have  been  elected,  and  he  shall  not  receive 


CONSTITUTION   OF   THE   UNITED   STATES.  35 

within  that  Period  any  other  Emolument  from  the 
United  States,  or  any  of  them. 

7  Before  he  enter  on  the  Execution  of  his  Office,  he 
shall  take  the  following  Oath  or  Affirmation  : — 

"I  do  solemnly  swear  (or  affirm)  that  I  will  faithfully 
"  execute  the  Office  of  President  of  the  United  States, 
"and  will  to  the  best  of  my  Ability,  preserve,  pro- 
"  tect  and  defend  the  Constitution  of  the  United  States.'' 

SECTION.  2.  'The  President  shall  be  Commander 
in  Chief  of  the  Army  and  Navy  of  the  United  States, 
and  of  the  Militia  of  the  several  States,  when  called 
into  the  actual  Service  of  the  United  States  ;  he  may 
require  the  Opinion,  in  writing,  of  the  principal 
Officer  in  each  of  the  executive  Departments,  upon 
any  Subject  relating  to  the  Duties  of  their  respective 
Offices,  and  he  shall  have  Power  to  grant  Reprieves 
and  Pardons  for  Offences  against  the  United  States, 
except  in  Cases  of  Impeachment. 

a  He  shall  have  Power,  by  and  with  the  Advice  and 
Consent  of  the  Senate,  to  make  Treaties,  provided  two 
thirds  of  the  Senators  present  concur  ;  and  he  shall 
nominate,  and  by  and  with  the  Advice  and  Consent  of 
the  Senate,  shall  appoint  Ambassadors,  ^ther  public 
Ministers  and  Consuls,  Judges  of  the  supreme  Court, 
and  all  other  Officers  of  the  United  States,  whose 
Appointments  are  not  herein  otherwise  provided  for, 
and  which  shall  be  established  by  Law  :  but  the  Con 
gress  may  by  Law  vest  the  Appointment  of  such  infe- 


36  CONSTITUTION   OF  THE  UNITED   STATES. 

rior  Officers,  as  they  think  proper,  in  the  President 
alone,  in  the  Courts  of  Law,  or  in  the  Heads  of  De 
partments. 

8  The  President  shall  have  Power  to  fill  up  all  Va 
cancies  that  may  happen  during  the  Recess  of  the 
Senate,  by  granting  Commissions  which  shall  expire 
at  the  End  of  their  next  Session. 

SECTION.  3.  He  shall  from  time  to  time  give  to  the 
Congress  Information  of  the  State  of  the  Union,  and 
recommend  to  their  Consideration  such  Measures  as  he 
shall  judge  necessary  and  expedient ;  he  may,  on  ex 
traordinary  Occasions,  convene  "both  Houses,  or  either 
of  them,  and  in  Case  of  Disagreement  between  them, 
with  Respect  to  the  Time  of  Adjournment,  he  may 
adjourn  them  to  such  Time  as  he  shall  think  proper ; 
lie  shall  receive  Ambassadors  and  other  public  Minis 
ters  ;  he  shall  take  Care  that  the  Laws  be  faithfully 
executed,  and  shall  Commission  all  the  officers  of  the 
United  States. 

SECTION.  4.  The  President,  Vice  President  and  all 
civil  Officers  of  the  United  States,  shall  be  removed 
from  Office  on  Impeachment  for,  and  Conviction  of, 
Treason,  Bribery,  or  other  high  Crimes  and  Misde 
meanors. 

ARTICLE  III. 

SECTION.  1.  The  judicial  Power  of  the  United 
States,  shall  be  vested  in  one  supreme  Court,  and  in 


CONSTITUTION   OF  THE   UNITED   STATES.  37 

such  inferior  Courts  as  the  Congress  may  from  time  to 
time  ordain  and  establish.  The  Judges,  both  of  the 
supreme  and  inferior  Courts,  shall  hold  their  Offices 
during  good  Behavior,  and  shall,  at  stated  Times,  re 
ceive  for  their  Services,  a  Compensation,  which  shall 
not  be  diminished  during  their  Continuance  in  Office. 

SECTION.  2.  l  The  judicial  Power  shall  extend  to  all 
Cases,  in  Law  and  Equity,  arising  under  this  Constitu 
tion,  the  Laws  of  the  United  States,  and  Treaties 
made,  or  which  shall  be  made,  under  their  Authority  ; 
— to  all  Cases  affecting  Ambassadors,  other  public 
Ministers,  and  Consuls  ; — to  all  Cases  of  admiralty  and 
maritime  Jurisdiction  ; — to  Controversies  to  which  the 
United  States  shall  be  a  Party ; — to  Controversies 
between  two  or  more  States ; — between  a  State  and 
Citizens  of  another  State  ; — between  Citizens  of  differ 
ent  States, — between  Citizens  of  the  same  State  claiming 
Lands  under  Grants  of  different  States,  and  between  a 
State,  or  the  Citizens  thereof,  and  foreign  States,  Citi 
zens  or  Subjects. 

2  In  all  Cases  affecting  Ambassadors,  other  public 
Ministers  and  Consuls,  and  those  in  which  a  State 
shall  be  Party,  the  supreme  Court  shall  have  original 
Jurisdiction.     In  all  the  other  Cases  before  mentioned, 
the  supreme  Court  shall  have  appellate  Jurisdiction, 
both  as  to  Law  and  Fact,  with  such  Exceptions,  and 
under  such  Regulations  as  the  Congress  shall  make. 

3  The  Trial  of  all  Crimes,  except  in  Cases  of  Impeach- 


38  CONSTITUTION   OF  THE  UNITED   STATES. 

ment,  shall  be  by  Jury  ;  and  such  Trial  shall  be  held 
in  the  State  where  the  said  Crimes  shall  have  been 
committed  ;  but  when  not  committed  within  any  State, 
the  Trial  shall  be  at  such  Place  or  Places  as  the  Con 
gress  may  by  Law  have  directed. 

SECTION.  3.  l  Treason  against  the  United  States, 
shall  consist  only  in  levying  War  against  them,  or  in 
adhering  to  their  Enemies,  giving  them  Aid  and  Com 
fort.  No  Person  shall  be  convicted  of  Treason  unless 
on  the  Testimony  of  two  Witnesses  to  the  same  overt 
Act,  or  on  Confession  in  open  Court. 

2  The  Congress  shall  have  Power  to  declare  the 
Punishment  of  Treason,  but  no  Attainder  of  Treason 
shall  work  Corruption  of  Blood,  or  Forfeiture  except 
during  the  Life  of  the  Person  attainted. 

ARTICLE.    IV. 

SECTION.  1.  Full  Faith  and  Credit  shall  be  given 
in  each  State  to  the  public  Acts,  Records,  and  judicial 
Proceedings  of  every  other  State.  And  the  Congress 
may  by  general  Laws  prescribe  the  Manner  in  which 
such  Acts,  Records  and  Proceedings  shall  be  proved, 
and  the  Effect  thereof. 

SECTION.  2.  l  The  Citizens  of  each  State  shall  be 
entitled  to  all  Privileges  and  Immunities  of  Citizens  in 
the  several  States. 

*A  Person  charged  in  any  State  with  Treason, 
Felony,  or  other  Crime,  who  shall  flee  from  Justice, 


CONSTITUTION   OF  THE  UNITED   STATES.  39 

and  be  found  in  another  State,  shall  on  Demand  of  the 
executive  Authority  of  the  State  from  which  he  fled, 
be  delivered  up,  to  be  removed  to  the  State  having 
Jurisdiction  of  the  Crime. 

3  No  Person  held  to  Service  or  Labour  in  one  State, 
under  the  Laws  thereof,  escaping  into  another,  shall, 
in  Consequence  of  any  Law  or  Regulation  therein,  be 
discharged  from  such  Service  or  Labour,  but  shall  be 
delivered  up  on  Claim  of  the  Party  to  whom  such 
Service  or  Labour  may  be  due. 

SECTION.  3.  l  New  States  may  be  admitted  by  the 
Congress  into  this  Union ;  but  no  new  State  shall  be 
formed  or  erected  within  the  Jurisdiction  of  any  other 
State  ;  nor  any  State  be  formed  by  the  Junction  of  two 
or  more  States,  or  Parts  of  States,  without  the  Consent 
of  the  Legislatures  of  the  States  concerned  as  well  as 
of  the  Congress. 

3  The  Congress  shall  have  Power  to  dispose  of  and 
make  all  needful  Rules  and  Regulations  respecting  the 
Territory  or  other  Property  belonging  to  the  United 
States  ;  and  nothing  in  this  Constitution  shall  be  so 
construed  as  to  Prejudice  any  Claims  of  the  United 
States,  or  of  any  particular  State. 

SECTION.  4.  The  United  States  shall  guarantee  to 
every  State  in  this  Union  a  Republican  Form  of 
Government,  and  shall  protect  each  of  them  against 
Invasion,  and  on  Application  of  the  Legislature,  or  of 


40  CONSTITUTION   OF  THE  UNITED   STATES. 

the  Executive  (when  the  Legislature  cannot  be  con 
vened)  against  domestic  Violence. 

,~> 

ARTICLE.   Y. 

The  Congress,  whenever  two  thirds  of  Iboth  Houses 
shall  deem  it  necessary,  shall  propose  Amendments  to 
this  Constitution,  or,  on  the  Application  of  the  Legisla 
tures  of  two-thirds  of  the  several  States,  shall  call  a 
Convention  for  proposing  Amendments,  which,  in  either 
Case,  shall  Ibe  valid  to  all  Intents  and  Purposes,  as 
Part  of  this  Constitution,  when  ratified  by  the  Legisla 
tures  of  three  fourths  of  the  several  States,  or  by  Con 
ventions  in  three  fourths  thereof,  as  the  one  or  the 
other  Mode  of  Ratification  may  be  proposed  by  the 
Congress  ;  Provided  that  no  Amendment  which  may 
be  made  prior  to  the  Year  one  thousand  eight  hundred 
and  eight  shall  in  any  Manner  affect  the  first  and  fourth 
Clauses  in  the  Ninth  Section  of  the  first  Article  ;  and 
that  no  State,  without  its  Consent,  shall  be  deprived  of 
its  equal  Suffrage  in  the  Senate. 

ARTICLE.   VI. 

1  All  Debts  contracted  and  Engagements  entered  into, 
before  the  Adoption  of  this  Constitution,  shall  be  as 
valid  against  the  United  States  under  this  Constitution, 
as  under  the  Confederation. 

2  This  Constitution,  and  the  Laws  of  the  United  States 
which  shall  be  made  in  Pursuance  thereof;   and  all 
Treaties  made,  or  which  shall  be  made,   under   the 


CONSTITUTION   OF   THE   UNITED   STATES.  41 

authority  of  the  United  States,  shall  be  the  supreme 
Law  of  the  Land  ;  and  the  Judges  in  every  State  shall 
be  bound  thereby,  any  Thing  in  the  Constitution  or 
Laws  of  any  State  to  the  Contrary  notwithstanding. 

3  The  Senators  and  Representatives  before  mentioned, 
and  the  Members  of  the  several  State  Legislatures,  and 
all  executive  and  judicial  Officers,  both  of  the  United 
States  and  of  the  several  States,  shall  be  bound  by  Oath 
or  Affirmation,  to  support  this  Constitution ;  but  no 
religious  Test  shall  ever  be  required  as  a  Qualification 
to  any  Office  or  public  Trust  under  the  United  States. 

ARTICLE.  VII. 

The  Ratification  of  the  Conventions  of  nine  States, 
shall  be  sufficient  for  the  Establishment  of  this  Consti 
tution  between  the  States  so  ratifying  the  Same. 
DONE  in  Convention  by  the  Unanimous  Consent  of 
the  States  present  the  Seventeenth  Day  of  Septem 
ber  in  the  Year  of  our  Lord  one  thousand  seven 
hundred  and  Eighty  seven  and  of  the  Indepen- 
dance  of  the  United  States  of  America  the  Twelfth. 
IN  WITNESS  whereof  We  have  hereunto  subscribed 

our  Names, 

GEO  WASHINGTON— 

Presidt  and  deputy  from  Virginia 

NEW  HAMPSHIRE. 

JOHN  LANGDON,  NICHOLAS  GILMAN. 

MASSACHUSETTS. 

NATHAXIEL  GORIIAM,  RUFUS  KING. 


42  CONSTITUTION   OF  THE  UNITED   STATES. 

CONNECTICUT. 

WM.  SAML.  JOHNSON,  ROGER  SHERMAN. 

NEW  YORK. 

ALEXANDER  HAMILTON. 

NEW  JERSEY. 

WIL  :  LIVINGSTON,  DAVID  BREARLET, 

WM.  PATERSON,  JONA.  DAYTON. 

PENNSYLVANIA. 

B.  FRANKLIN,  THOMAS  MIFFLIN, 

ROBT.  MORRIS,  GEO:  CLYMER, 

THO:  FITZSIMONS,  JARED  INGERSOLL, 

JAMES  WILSON,  Gouv :  MORRIS. 

«.* 

DELAWARE. 

GEO  :  READ,  GUNNING  BEDFORD,  Jun'r, 

JOHN  DICKINSON,  RICHARD  BASSETT, 

JACO:  BROOM. 

MARYLAND. 

JAMES  M'HENRY  DAN  :  OF  ST.  THOS.  JENIFER, 

DANL.  CARROLL. 

VIRGINIA. 
JOHN  BLAIR,  JAMES  MADISON,  Jr., 

NORTH  CAROLINA. 

WM.  BLOUNT  RICII'D  DOBBS  SPAIGHT, 

Hu.  WILLIAMSON. 

SOUTH  CAROLINA. 

J.  RUTLEDGE,  CHARLES  COTESWORTH  PINCKNEY, 

CHARLES  PINCKNEY,  PIERCE  BUTLER. 


CONSTITUTION   OF  THE   UNITED   STATES. 


43 


GEORGIA. 
WILLIAM  FEW,  ABR.  BALDWIN. 

Attest :  WILLIAM  JACKSOIST,  Secretary. 


ARTICLES 

IN  ADDITION  TO,  AND  AMENDMENT  OF 

THE   CONSTITUTION 

OP  THE 

UNITED   STATES  OF  AMERICA, 

Proposed  by  Congress,  and  ratified  by  tlie  Legisla 
tures  of  the  several  States,  pursuant  to  the  fifth 
article  of  the  original  Constitution. 

(ARTICLE  1.) 

Congress  shall  make  no  law  respecting  an  establish 
ment  of  religion,  or  prohibiting  the  free  exercise  there 
of;  or  abridging  the  freedom  of  speech,  or  of  the 
press  ;  or  the  right  of  the  people  peaceably  to  assem 
ble,  and  to  petition  the  Government  for  a  redress  of 
grievances. 

(ARTICLE  2.) 

A  well  regulated  Militia,  being  necessary  to  the  se 
curity  of  a  free  State,  the  right  of  the  people  to  keep 
and  bear  Arms,  shall  not  be  infringed. 


44  CONSTITUTION  OF  THE  UNITED  STATES. 

(ARTICLE  III.) 

No  Soldier  shall,  in  time  of  peace  be  quartered  in 
any  house,  without  the  consent  of  the  Owner,  nor  in 
time  of  war,  "but  in  a  manner  to  be  prescribed  by  law. 

(ARTICLE  IV.) 

The  right  of  the  people  to  be  secure  in  their  per-v 
sons,  houses,  papers,  and  effects,  against  unreasonable 
searches  and  seizures,  shall  not  be  violated,  and  no 
Warrants  shall  issue,  but  upon  probable  cause,  sup 
ported  by  Oath  or  affirmation,  and  particularly  de 
scribing  the  place  to  be  searched,  and  the  persons  or 
things  to  be  seized. 

(ARTICLE  V.) 

~No  person  shall  be  held  to  answer  for  a  capital,  or 
otherwise  infamous  crime,  unless  on  a  presentment  or 
indictment  of  a  Grand  Jury,  except  in  cases  arising  in 
the  land  or  naval  forces,  or  in  the  Militia,  when  in 
actual  service  in  time  of  War  or  public  danger ;  nor 
shall  any  person  be  subject  for  the  same  offence  to  be 
twice  put  in  jeopardy  of  life  or  limb ;  nor  shall  be 
compelled  in  any  Criminal  Case  to  be  a  witness  against 
himself,  nor  be  deprived  of  life,  liberty,  or  property, 
without  due  process  of  law  ;  nor  shall  private  property 
be  taken  for  public  use,  without  just  compensation, 

(ARTICLE  VI.) 
In  all  criminal  prosecutions,  the  accused  shall  enjoy 


CONSTITUTION   OF  THE  UNITED   STATES.  4£ 

the  right  to  a  speedy  and  public  trial,  by  an  impartial 
jury  of  the  State  and  district  wherein  the  crime  shall 
have  been  committed,  which  district  shall  have  been 
previously  ascertained  by  law,  and  to  be  informed  of 
the  nature  and  cause  of  the  accusation ;  to  be  con 
fronted  with  the  witnesses  against  him  ;  to  have  Com 
pulsory  process  for  obtaining  Witnesses  in  his  favour, 
and  to  have  the  Assistance  of  Counsel  for  his  defence. 

(ARTICLE  VII.) 

In  Suits  at  common  law,  where  the  value  in  contro 
versy  shall  exceed  twenty  dollars,  the  right  of  trial 
by  jury  shall  be  preserved,  and  no  fact  tried  by  a  jury 
shall  be  otherwise  re-examined  in  any  Court  of  the 
United  States,  than  according  to  the  rules  of  the  com 
mon  law. 

(ARTICLE  VIII.) 

Excessive  bail  shall  not  be  required,  nor  excessive 
fines  imposed,  nor  cruel  and  unusual  punishments  in 
flicted. 

(ARTICLE  IX.) 

The  enumeration  in  the  Constitution,  of  certain  rights, 
shall  not  be  construed  to  deny  or  disparage  others 
retained  by  the  people. 

(ARTICLE  X.) 
The  powers  not  delegated  to  the  United  States  by  the 


46  CONSTITUTION   OF  THE   UNITED   STATES. 

Constitution,  nor  prohibited  by  it  to  the  States,   are 
reserved  to  the  States  respectively,  or  to  the  people. 

ARTICLE  XL 

The  Judicial  power  of  the  United  States  shall  not 
be  construed  to  extend  to  any  suit  in  law  or  equity, 
commenced  or  prosecuted  against  one  of  the  United 
States  by  Citizens  of  another  State,  or  by  Citizens  or 
Subjects  of  any  Foreign  State. 

ARTICLE  XII. 

1  The  Electors  shall  meet  in  their  respective  states,  and 
vote  by  ballot  for  President  and  Vice  President,  one  of 
whom,  at  least,  shall  not  be  an  inhabitant  of  the  same 
state  with  themselves  ;  they  shall  name  in  their  ballots 
the  person  voted  for  as  President,  and  in  distinct  ballots 
the  person  voted  for  as  Vice-President,  and  they  shall 
make  distinct  lists  of  all  persons  voted  for  as  President, 
and  of  all  persons  voted  for  as  Vice-President,  and  of  the 
number  of  votes  for  each,  which  lists  they  shall  sign 
and  certify,  and  transmit  sealed  to  the  seat  of  the  gov 
ernment  of  the  United  States,  directed  to  the  President 
of  the  Senate ; — The  President  of  the  Senate  shall,  in 
presence  of  the  Senate  and  House  of  Representatives, 
open  all  the  certificates  and  the  votes  shall  then  be 
counted ; — The  person  having  the  greatest  number  of 
votes  for  President,  shall  be  the  President,  if  such 
number  be  a  majority  of  the  whole  number  of  Electors 
appointed ;  and  if  no  person  have  such  majority,  then 
from  the  persons  having  the  highest  numbers  not  ex- 


CONSTITUTION   OF   THE  UNITED   STATES.  47 

ceeding  three  on  the  list  of  those  voted  for  as  President, 
the  House  of  Representatives  shall  choose  immediately, 
by  ballot,  the  President.  But  in  choosing  the  Presi 
dent,  the  votes  shall  be  taken  by  states,  the  representa 
tion  from  each  state  having  one  vote  ;  a  quorum  for 
this  purpose  shall  consist  of  a  member  or  members 
from  two- thirds  of  the  states,  and  a  majority  of  all  the 
states  shall  be  necessary  to  a  choice.  And  if  the  House 
of  Representatives  shall  not  choose  a  President  when 
ever  the  right  of  choice  shall  devolve  upon  them,  before 
the  fourth  day  of  March  next  following,  then  the  Vice- 
President  shall  act  as  President,  as  in  the  case  of  the 
death  or  other  constitutional  disability  of  the  Presi 
dent.  *  The  person  having  the  greatest  number  of  votes 
as  Y ice-President,  shall  be  the  Vice-President,  if  such 
number  be  a  majority  of  the  whole  number  of  Electors 
appointed,  and  if  no  person  have  a  majority,  then  from 
the  two  highest  numbers  on  the  list,  the  Senate  shall 
choose  the  Vice-President ;  a  quorum  for  the  purpose 
shall  consist  of  two-thirds  of  the  whole  number  of 
Senators,  and  a  majority  of  the  whole  number  shall  be 
necessary  to  a  choice.  3  But  no  person  constitutionally 
ineligible  to  the  office  of  President  shall  be  eligible  to 
that  of  Vice-President  of  the  United  States. 

NOTE. — 1.  The  Editor  has  availed  himself  of  the  foregoing  copies  of  the 
original  Constitution  and  Amendments  found  in  the  valuable  work  of  Mr.  W. 
Ilickey,  who  obtained  the  certilicate  of  the  Secretary  of  State  that  they  were 
"correct,  in  text,  letter,  and  punctuation,"  except  as  to  "the  small  figures 
designating  the  clauses,"  called  by  printers  "superior  figures,"  which  wore 
"added  merely  for  convenience  of  reference."  The  certificate  is  by  JAMES 
BUCHANAN,  Secretary  of  State,  and  dated  July  20th,  1846. 


48         CONSTITUTION  OF  THE  UNITED  STATES. 
AMENDMENT  OF  IST  FEBKUARY,  1865. 
ARTICLE    XIII. 

1.  Neither  slavery  nor  involuntary  servitude,  except 
as  a  punishment  for  crime,  whereof  the  party  shall  have 
"been  duly  convicted,   shall  exist  within  the  United 
States,  or  any  place  subject  to  their  jurisdiction. 

2.  Congress  shall  have  power  to  enforce  this  article 
"by  appropriate  legislation. 

AETICLE   XIY. 

[Not  yet  ratified  ~by  twenty-sewn  States.'] 

SECTION  1.  All  persons  "born  or  naturalized  in  the 
United  States,  and  subject  to  the  jurisdiction  thereof, 
are  citizens  of  the  United  States  and  of  the  State  wherein 
they  reside.  No  State  shall  make  or  enforce  any  law 
which  shall  abridge  the  privileges  or  immunities  of  citi 
zens  of  the  United  States  ;  nor  shall  any  State  deprive 
any  person  of  life,  liberty,  or  property,  without  due 
process  of  law,  nor  deny  to  any  person  within  its  juris 
diction  the  equal  protection  of  the  laws. 

SECTION  2.  Representatives  shall  be  apportioned 
among  the  several  States  according  to  their  respective 
numbers,  counting  the  whole  number  of  persons  in 
each  State,  excluding  Indians  not  taxed.  But  when 
the  right  to  vote  at  any  election  for  the  choice  of  elect 
ors  for  President  and  Yice-President  of  the  United  States, 
Representatives  in  Congress,  the  executive  and  judicial 


CONSTITUTION   OF   THE   UNITED   STATES.  49 

officers  of  a  State,  or  the  members  of  the  legislature 
thereof,  is  denied  to  any  of  the  male  inhabitants  of  such 
State,  being  twenty-one  years  of  age,  and  citizens  of  the 
United  States,  or  in  any  way  abridged,  except  for  par 
ticipation  in  rebellion  or  other  crime,  the  basis  of  rep 
resentation  therein  shall  be  reduced  in  the  proportion 
which  the  number  of  such  male  citizens  shall  bear  to 
the  whole  number  of  male  citizens  twenty-one  years  of 
age  in  such  State. 

SECTION.  3.  No  person  shall  be  a  senator  or  repre 
sentative  in  Congress,  or  elector  of  President  and 
Vice-President,  or  hold  any  office,  civil  or  military, 
under  the  United  States,  or  under  any  State,  who,  hav 
ing  previously  taken  an  oath,  as  a  member  of  Congress, 
or  as  an  offier  of  the  United  States,  or  as  a  member  of 
any  State  legislature,  or  as  an  executive  or  judicial 
officer  of  any  State,  to  support  the  Constitution  of  the 
United  States,  shall  have  engaged  in  insurrection  or 
rebellion  against  the  same,  or  given  aid  or  comfort  to 
the  enemies  thereof.  But  Congress  may,  by  a  vote  of 
two-thirds  of  each  house,  remove  such  disability. 

SECTION  4.  The  validity  of  the  public  debt  of  the 
United  States,  authorized  by  law,  including  debts 
incurred  for  payment  of  pensions  and  bounties  for 
services  in  suppressing  insurrection  or  rebellion,  shall 
not  be  questioned.  But  neither  the  United  States  nor 
any  State  shall  assume  or  pay  any  debt  or  obligation 
incurred  in  aid  of  insurrection  or  rebellion  against  the 


50  CONSTITUTION   OF  THE   UNITED   STATES. 

United  States,  or  any  claim  for  the  loss  or  emancipa 
tion  of  any  slave  ;  but  all  such  debts,  obligations,  and 
claims  shall  be  held  illegal  and  void. 

SECTION  5.  The  Congress  shall  have  power  to  en 
force,  by  appropriate  legislation,  the  provisions  of  this 
article. 


ARTICLE      XV. 

Section  I.    Tiie   right   of   citizens   01 
United   States   to   vote   shall  not   be   denied 
abridged   by   the  United    States, or  by  any  £ 
on  account   of   race,  color,  or  previous   cond 
tion  of   servitude. 

Section  2.  The  Congress  shall  have  f 
to  enforce  tnis  article  by  appropriate  le 
lation* 


DIRECTIONS    FOR    READING    THE    ANNOTATED 
CONSTITUTION. 


1.  Every  noun  will  be  found  in  the  index,  with  reference  to 
article,  section,  clause,  and  pages  where  found. 

2.  The  text  is  in  "long  primer,"  or   the  larger  type,  and 
the  notes  in  "  brevier,"  or  the  smaller  type. 

3.  The  notes  are  numbered  consecutively,  and  they  stand 
between  the  texts  in  the  order  of   the   words   and   phrases 
defined  and  expounded. 

4.  The   marginal   numbers   refer  to   other    notes    having 
relation  to  the  same  subjects-matter. 

5.  The  abbreviations  of  authorities  will  be  found  after  the. 
"  Table  of  Cpntents." 

6.  The  citations  in  (parenthesis)  show  that  they  have  been 
quoted  in   the   case,  or  by   the   author  to   whom   they   are 
credited. 

1.    The  definitions   are   all   upon   the  highest   authorities, 
and  are  usually  the  first  remark  in  the  note. 

8.  The  interrogations  (?)    in  the  margin  are  for  the  use  ot 
teachers. 

9.  The  figures  in  [17.]  are  not  in  the  Constitution  as  filed  in 
the    State    Department,   but    are    inserted   for   convenience, 
because  the   general  mode  of   printing  the  Constitution    is 
with  these  enumerations. 


62  THE  CONSTITUTION  DEFINED,    2,    3, 


THE    CONSTITUTION 

OF   THE 

UNITED  STATES  OF  AMERICA. 


What  is  the  2.  Let  it  be  remembered  :  1.  That  it  is  a  government;  2.  That 
Constitution  it  is  the  supreme  law  of  the  land.  Farrar's  Const.  §  1-4.  And 
to  yt8  1S~  the  la\vs  of  the  Union  can  be  enforced  by  its  own  authority,  on  all 
persons  and  subjects-matter,  over  which  jurisdiction  was  granted 
to  any  department  or  officer  of  the  Government  of  the  United 
States.  Rhode  Island  v.  Massachusetts,  12  Pet.  G57,  729.  It  is 
not  a  league,  but  a  government.  Gibbons  v.  Ogden,  9  Wheat.  187. 
For  a  history  of  the  thirteen  colonies,  until  the  formation  of  the 
Constitution  of  the  United  States,  see  Story's  Commentaries  on  the 
Constitution,  vol.  1;  Johnson  v.  Mclntnsh,  8  "VVh.  543-573;  Curtis's 
Hist,  of  the  Const,  chap.  1,  Book  1,  §.  1-197  ;  1  Kent's  Com.  llth 
Ed.,  sec.  10  and  notes.  See  Stearns  v.  United  States,  2  Paine, 
300. 

Went  into  3.  This  Constitution  went  into  operation  on  the  first  Wednesday 
operation  (4th  day)  of  March,  1789.  Owings  v.  Speed,  5  Wheat.  420;  1 
whon?  Kent's  Com.  219. 

Did  it  create      4.  The  new  government  was  not  a  mere  change  in  dynasty,  as  in 

a  new  jrov-  a  form  of  government,  leaving  the  nation  or  sovereignty  the  same, 

eminent?      aT]d  c}otj)e(i  wjth  a|i  the  rights,  and  bound  by  all  the  obligations  of 

the  preceding  one ;  but  it  was  a  new  political  body,  a  new  nation, 

then,  for  the  first  time,  taking  its  place  in  the  family  of  nations. 

Scott  v.  Sandford,  19  How.  397. 

Mutations?  According  to  Mr.  Duane,  the  Constitution  of  the  United  States 
has  passed  through  three  forms:  1.  The  revolutionary;  2.  Tho 
confederate  ;  3.  The  constitutional ;  and  the  first  and  the  third  pro 
ceeded  equally  from  the  people  in  their  original  capacity.  1  Kent's 
Com.,  llth  Ed.,  212,  note  a. 

Was  it  a          The  Constitution  is  not  a  mere  compact  among  the  States ;  but  it 

mere  [s  a  government  agreed  to  by  the  people  of  the  United  States. 

compaot?      j  gtory>s  <joustij  3d  edition,  §   344-365.  and  notes;  3  Elliot's  De- 


5.  53 

bates,  286,  287,  283,  and  notes;  Webster's  Speeches,  410  ;  Farrar's         6 
Const.  §  5-38.     And  whether  it  be  formed  by  compact  between  the 
States,  or  iu  any  other  manner,  its  character  is  the  same.     President 
Jackson's  Proclamation,  10th  Dec.  1833;  Story's  Const.,  3d  Ed., 
p.  727.     When  adopted  it  was  of  complete  obligation,  and  bound  Its   obliga- 
the    State    sovereignties.      McCulloch   v.  Maryland,  4  Wh.  404;tiou? 
Chisholm  v.  Georgia,  2  Ball.  471 ;  Cohens  v.  Virginia,  6  Wh.  414; 
Metropolitan  Bank  v.  Van  Dyck,  27  N.  Y.  Kep.  409.     For  a  clear         2 
exposition  of  the  government,  see  Scott  v.  Sandford,  19  How.  396  ; 
Able  man  v.  Booth,  21  How.  506. 

WE,  THE  PEOPLE  OF  THE  UNITED  STATES,  in  order  to  Preamble. 
form  a  more  perfect  union,  establish  justice,  insure 
domestic  tranquillity,  provide  for  the  common  defense,      5-13. 
promote  the  general  welfare,  and  secure  the  blessings 
of  liberty  to  ourselves  and  our  posterity,  do  ordain 
and  establish  this  Constitution  for  the  United  States 
of  America. 

5.  The  preamble  in  the  Constitution  is  constantly  referred  to  by  "What  is  the 
statesmen  and  jurists,  to  aid  them  in  the  exposition  of  its  pro-  use  of,th(; 
visions.      Chisholm  v.  Georgia,  2  Dail.  475 ;  Brown  v.  Maryland,  pre{ 
12  Wh.  455-6  ;   1  Story's  Const,  chap.  4,  §  5,  et  seq.      It  is  the  es 
sence  and  epitome  of  the  whole  instrument  by  which  the  govern 
ment  is  ordained  and  created,  and  its  purposes,  authority,  and 
duty  established.     Farrar's  Const.  §  5. 

It,  was  one  of  the  last  clauses  incorporated  in  the  Constitution.  Its  history  ? 
Farrar,  §  6.     It  was  adopted  after  various  other  forms  had  been 
proposed  and  rejected.    Farrar,  §  6-12;  2  Curtis's  Hist,  of  the  Con 
stitution,  chap.  xii.  372-376. 

(1.)  To  form  a  more  perfect  union;  (2.)  to  establish  justice ;  What  are  its 
(3.)  to  insure  domestic  tranquillity;  (4.)  to  provide 'for  the  com-  divisions? 
mon  defense;  (5.)  to  promote  the  general  welfare;  (6.)  to  secure 
the  blessings  of  liberty  to  themselves  and  posterity.     (Chisholm 
v.  Georgia,  2  Dallas,  419;    2  Cond.  635,  671.)  Story's  Const.  §  463  ; 
Farrar,  §  15-17. 

The  differences  of  opinion  of  the  Southern  States  Rights  or  Cal-  How   dif- 
houn    school,  as  they  have  been  called,  may  be  seen  in  the  pre-  rred  the 
amble  to  the   Constitution  formed  at  Montgomery,  Alabama,   in  school6?" 
March,  1861. 

"  We,  the  people  of  the  Confederate  States,  each  State  acting  in  The  Gonfed- 
its  sovereign  and  independent  character,  in  order  to  form  a  federal  erate  States? 
government,  establish  justice,  insure  domestic  tranquillity,  and  se 
cure  the  blessings  of  liberty  to  ourselves  and  our  posterity — looking 
to  the  favor  and  guidance  of  Almighty  God — do  ordain  and  esta 
blish  this  Constitution  for  the  Confederate  States  of  America."     It 
will  thus  be  seen  that  a  "  Federal  Government "  was  substituted 
for  a  "  more  perfect  union,"  which  may  be  no  great  difference,  as 
"government"  carries  the  idea  of  perpetuity;  for  although  "each 


54 


WE  THE  PEOPLE,    6. 


[Preamble 


State  acted  in  its  sovereign  capacity,"  the  instrument  was  sub 
mitted  to  conventions  of  the  people  for  ratification.  This  was  the 
South  Carolina  form,  offered  by  Mr.  Rutledge  in  the  Federal  Con 
vention.  Farrar,  §  8.  It  was  at  first  so  adopted,  but  afterwards 
changed.  2  Curtis,  373.  The  fourth  and  fifth  objects,  "general 
79,  80.  welfare  and  common  defense,"  were  also  omitted,  although  the 
latter  was  retained  in  the  first  clause  of  section  viii.  of  art.  i.,  and 
all  the  war-powers  were  retained.  Paschal' s  Annotated  Digest, 
pp.  86,  88,  notes  216,  217. 

The  parenthetical — "  looking  to  the  favor  of  Almighty  God  " — 
however  piously  uttered,  met  no  response  from  the  true  Preserver 
of  liberty.  The  actions  of  the  Secessionists,  more  than  any  decla 
ration  in  their  Constitution,  showed  their  belief  in  the  right  of  each 
State  to  retire  from  the  Union. 


By  whom 
ordained 
and  estab 
lished  ? 


6.  "WE  THE  PEOPLE."  The  Constitution  was  ordained  and 
established,  not  by  the  States  in  their  sovereign  capacities,  but, 
emphatically,  by  the  people  of  the  United  States.  Martin  v.  Hun 
ter's  Lessee,  1  Wh.  324 ;  Banks  v.  Greenleaf,  6  Call,  277.  It  required 
not  the  affirmance  of,  nor  could  it  be  negatived  by,  the  State 
governments.  McCulloch  v.  Maryland,  4  Wheat.  316,  404,  405. 
Cohens  v.  Virginia,  6  Wheat.  264,  413,  414;  1  Kent's  Com.,  Lect. 
10,  p.  217;  Farrar's  Const.  §  1-60;  Rhode  Island  v.  Massachu 
setts,  12  Wheat.  657,  720.  The  true  doctrine  would  seem  to  be,  that 
the  Constitution  was  adopted  by  the  people  of  the  several  States, 
which  had  been  previously  confederated  under  the  name  of  the  Uni 
ted  States,  acting  through  the  delegates  by  whom  they  were  respec 
tively  represented  in  the  convention  which  formed  the  Constitution. 
Baldwin's  Constitutional  Views,  29-42.  And  see  Worcester  v. 
Georgia,  6  Pet.  569,  where  it  is  said  by  Mr.  Justice  McLean  to  have 
been  formed  "  by  a  combined  power  exercised  by  the  people  through 
their  delegates,  limited  in  their  sanctions  to  the  respective  States." 
And  see  Farrar,  §  1-60.  See  Barron  v.  Mayor  of  Baltimore,  1  Pet. 
243. 

The  Constitution  resulted  neither  from  the  decision  of  a  majority 

majorities?  of  the  peOpie  of  the  Union,  nor  from  that  of  a  majority  of  the 
States.  1  Story's  Const,  §  360;  Ware  v.  Hylton,  3  Dallas,  199; 
Chisholm  v.  Georgia,  3  Dall.  419;  2  Cond.  668,  671;  2  Elliot's 
Debates,  47  ;  The  Federalist,  Nos.  22,  33,  39. 

What  menns       The    words,    "  WE   THE   PEOPLE    OF    THE    UNITED  STATES "    and 

"  we  the  i>eo- u  CITIZENg  >>  are  synonymous  terms,  and  mean  the  same  thing. 
Scott  v.  Sanford,  19  How.  404.  They  are  "the  people  of  the 

16,17,  24, 46,  several  States;"  "citizens  of  the  United  States;"  "citizens  of 
each  State;"  "numbers,"  "free  persons,"  and  "other  persons." 
Farrar,  §  30-38. 

The  language  is,  "WE  THE  PEOPLE,"  instead  of  "We  the 
States."  Patrick  Henry,  2  Elliot's  Debates,  47;  and  see  1  Elliot's 
Debates,  91,  92,  110 ;  1  Story's  Const.  §  348,  note  1  of  3d  ed. 

And  for  a  full  exposition  of  the  action  of  the  people,  see  Story's 
Const.,  §  362-365,  note  4  of  3d  edition;  1  Webster's  Speeches, 
1830,  p.  431;  4  Elliot's  Debates,  326;  Ma-iison's  Letter  in  the 
North  American  Review,  October,  1830,  p.  537,  53  S.  For  the 


Was  it  by 


169,  220. 


Preamble.]       A  PERFECT  UNION-JUSTICE,    7,  8.  55 

forms  of  ratification  by  the  State  Conventions,  see  Rickey's  Const, 
chap.  2,  pp.  129-192. 

Negroes,  whether  slaves  or  free,  were  not  included  in  the  terms  "Were  the 
"  people,"  or  "  citizens  of  the  United  States."     Scott  v.  Sandford,  Negroes 
19  How.  404-5.     The  case  of  Legrand  v.  Darnell,    2  Pet.  664,  Pe°Ple  ? 
does  not  conflict  with  this  view.     Id.  423-4.     But  the  States  may        220 
confer  all  the  rights  of  citizenship  upon  an  alien,  or  any  other  per 
son,  so  far  as  that  State  is  concerned ;  this,  however,  does  not 
make  him  a  citizen  of  the  United  States.     Id.  405-406. 

But  a  man  is  not  incapacitated  to  be  a  citizen  of  the  United  Can  the 
States  by  the  sole  fact  that  he  is  colored  or  of  African  descent,  and  States  confer 
not  a  white  man.     Opinion  of  Attorney-General  Bates,  of  29th 
Nov.,  1862,  in  which  the  whole  subject  of  citizenship  is  discussed.        220 

There  is  no  authoritative  definition  of  the  phrase  "  citizen  of  the 
United  States."     Id. 

But  the  question  was  put  to  rest  by  the  Civil  Rights  Bill,  in  the  Declared 
following  words :—  ^tizf;?8.,by' 

"  Be  it  enacted,  &c.,  That  all  persons  born  in  the  United  States,  KighteBill ? 
and  not  subject  to  any  foreign  power,  excluding  Indians  not  taxed, 
are  hereby  declared  to  be  citizens  of  the  United  States."     14  St.        275 
p.  27,  §  1 ;  Paschal's  Annotated  Digest,  Art.  5382. 

There  can  be  no  doubt  of  the  power  of  Congress  to  pass  this  act. 
Smith  v.  Moody,  26  Ind.  307. 

7.  "  IN  ORDER  TO  FORM  A  MORE  PERFECT  UNION."  That  it  should  How  a  more 
not,  like  the  Confederation,  be  a  mere  treaty,  operating  by  requisi- 
tions  on  the  States ;  and  that  the  people,  for  whose  benefit  it  was 
framed,  ought  to  have  the  sole  and  exclusive  right  to  ratify,  amend, 
and  control  its  provisions.  (2  Elliot's  Debates,  (Virginia)  47,  61, 
131,  57,  97,  98 ;  3  Id.  (North  Carolina,)  134, 145 ;  1  Id.  (Masachusetts,) 
72,  110.)  1  Story's  Const.  §  464,  469-480,  and  notes  to  third  edi 
tion;  Federalist,  Nos.  13,  14,  51. 

The  Government  which  preceded  were  "  Articles  of  Confede-  How  was 
ration  and  Perpetual   Union  between  the  States."      Ante,   p.   9  ;  the  Union 
Story's    Const.    §  229;    Public   Journals   of  Cong.,  by   Way  and  ^fect?01* 
Gideon,  vol.  i. ;   1  Bioren  and  Duane,  Laws  of  U.  S.  6 ;  Hickey's 
Const.  483. 

It  was  intended  to  make  the  Union  stronger,  by  giving  it  a  well- 14, 165, 195. 
balanced  representative  Legislature,  an  Executive,  and  a  Judiciary, 
with  guaranties  for  the  enforcement  of  law ;  these  provisions  car 
ried  along  the  idea  of  a  "more  perfect"  and  "perpetual  union." 
See  2  Curtis's  History  of  the  Constitution. 

§.  To  ESTABLISH  JUSTICE. — Justice  is  the  constant  and  ardent  What  la 
desire    to   render   to  every  one  that  which  is  his  own.     Justin-  justice  ? 
ian;  Burrill's  Law  Die.,  JUSTICE.     It  was  probably  used  here  in 
reference  to   the  judicial  power,  as  there  was  neither  executive 
nor  judiciary  under  the  Articles  of  Confederation. — ED.     Justice 
is  law.     9  Op.  481  (Black).     The  objects  to  be  attained  may  be          ? 
found  in  the  jurisdiction  given  in  the  judicial  power,  and  in  the  riow 
extradition  obligations,  as  well  as  in  the  general  powers  of  legis-  attained? 


56  TRANQUILLITY — LIBERTY,   9-12.         [Preamble. 

196, 198, 210,  lation  on  specified  subjects,  and  the  inhibitions  upon  the  States. 
224,  2-25.        Story's  Const.  §  482-489  ;  2  Kent's  Com.  333-4. 

How  Insure     9.  To  INSURE  DOMESTIC  TRANQUILLITY. — This,  doubtless,  means 
domestic       peace  among;  and  between  the  States.     And  it  was  sought  to  be 
tranquillity?  attained  by  the  equality  of  representation,  actual  and  proportionate  ; 
the  power  to  regulate  commerce  among  the  States ;  the  inhibitions 
upon  them ;  the  jurisdiction  of  the  Supreme  Court  over  controver- 
21,   89,  161,  sies  between  them;  the  guaranties  of  the  rights  of  the  citizens  in 
162,  220,  223,  each  .  the  rendition  of  criminals  and  persons  held  to  service  ;  the 
guaranties  of  republican  forms  of  government,  and  against  domes 
tic  strife ;  and  the  national  power  of  legislating  over  all  irritating 
subjects.     See  Story's  Const.  §  490-494 ;  the  Federalist,  Nos.  9, 
10,  41. 

What  is  the       1O.  To  PROVIDE  FOR  THE  COMMON  DEFENSE. — This  means  the 

common        defense  of  the  nation  against  all  enemies,  foreign  and  domestic. 

e  ense         rpjie  eucj  was  intended  to  be  attained  by  giving  the    power   to 

attained?      Congress  to  declare  war ;  to  provide  for  armies  and  navies-   grant 

letters  of  marque  and  reprisal ;  forts  and  arsenals ;  for  arming  and 

disciplining  the  militia;  making  treaties  the  supreme  law;   making 

117, 123, 130,  the  President  the  commander-in-chief  of  the  army  and  navy,  and 

175,  238,  240.  of  the  militia  when  in  actual  service.     Federalist,  Nos.  24,  25,  41; 

Ex  parte  Coupland,  26  Tex.  386 ;  Paschal's  Annotated  Digest,  notes 

218,  p.  88-90;  Story's  Const.  §§  494,  495;  Farrar,  §  95. 

What  is  the       11.   To    PROMOTE    THE    GENERAL    WELFARE. — This,     doubtless, 

general  wel-  means  the  general  and  equal  advantages  to  all  the  people  and  the 

States,  arising  from  the  grants  of  power  contained  in  the  Consti- 

79,  80.  tution,  as  well  as  the  inhibitions  upon  Congress  and  the  States,  and 

the  guaranties  in  the  Constitution. 

Without  claiming  this  as  a  warrant  for  the  exercise  of  doubtful 

87,  110,  220,  implied  powers,  we  may  point  to  the  regulation  of  commerce  ;  the 

a2I»  coining  of  money;  post-offices  and  post-roads  ;  the  acquisition  and 

extent  of  territory ;  the  patents  and  copy-rights,  and    the  general 

protection  of  the  citizen  everywhere,  as  vast  blessings,  the   true 

value  of  which  no  one  can  comprehend. — ED.     See  Story's  Const. 

497-50G. 

The  words  "  common  defense  and  general  welfare  "  were  not  in 
serted  until  4th  Sept.,  1787.    "  Safety"  seems  to  be  the  first  object. 
8,  4.  (Jay>  Federalist,  Nos.  3,  4),  Farrar,  §  101.    The  same  words  occur  in 

80.         the  first  clause  of  section  7.     See  criticisms  upon  them.     Id. 

12.    TO  SECURE  THE  BLESSINGS   OF    LIBERTY  TO  OURSELVES    AND 

OUR  POSTERITY. 

What  is  Civil  liberty  means  the  natural  liberty  of  every  one  to  pursue 

liberty?        his  own  happiness,  except  so  far  as  he  is  restrained  by  the  laws  of 

the  land.     Burrill's  Law  Dictionary,  CIVIL  LIBERTY;   Co.  Litt.  116, 

b;  1  Bl.  Com.  125  ;  note  5;  2  Kent's  Com.  26. 

This  was  doubtless  the  liberty  intended  to  be  secured  and  trans- 
How  rnitted  to  posterity  in  perpetuity.  The  object  has  been  sought  to 
attained?  be  more  permanently  secured  by  the  amendments  incorporating 


Preamble.]  THE  UNITED  STATES,    13.  57 

the  great  principles  of  Magna  Oharta ;  the  reservation  of  powers 
to  the  States;    the  destruction  of  negro    slavery,  which  became 
dangerous  to  liberty,  and  the  guaranties  to  the  citizen  in  all  the  246. 
Amendments.     Story's  Const.  §  17,  507-517;   1  Elliot's  Debates,  245'2T5' 
278,  296,  297,  332  ;   2  Id.,  47,  96,  136;   3  Id.,  243,  257,  294.     The 
Federalist,  everywhere.     See  Farrar,  §§  34,  104-122. 

13.  "Or  THE  UNITED  STATES  OF  AMERICA." — Mr. Calhoun,  in  his  What  is 
essay  on   Government  and  in  his  speeches,  contended,  that  this  ^glll?jn^e(j 
meant  "States  united" — that  is.  a  league  or  compact — and  not  a  states  of6 
government.     But  the  true  definition  doubtless  is,  the  union  of  America? 
States  under  all  the  restrictions  contained  in  the  Constitution.    "  The 
Government  of  the  United  States."     Cohens  v.  Virginia,  6  Wheat.  2,  4,  6. 
264.     The  United  States  is  a  government,  and  consequently  a  body 
politic  and  corporate,  capable  of  attaining  the  objects  for  which  it  Is  it  a  corpo- 
was  created,  by  the  means  which   are  necessary  for  their  attain-  ration  ? 
ment.     United  States  v.  Maurice,  2  Brock.    109.     And,  to  the  ex-  2>  4. 13S- 
tent  of  its  limited  powers,  it  is  supreme.     See  the  Dred  Scott  de 
cision,  and  Abelman  v.  Booth.    Through  the  instrumentality  of  the 
proper  department  to  which  the  delegated  powers  are  confided,  it        2i  *• 
may  enter  into  contracts  not  prohibited  by  law,  and  appropriate 
to  the  just  exercise  of  those  powers.     United  States  v.  Tingey,  5 
Pet.  128.      As  a  corporation,  it  has  capacity  to  sue  by  its  corporate 
title.     Dixon  v.  United  States,   1    Brock.   177;  Dugan  v.  United 
States,  3  Wh.  181.     It  may  compromise  a  suit,  and  receive  real  Can  it  com- 
and  other  property  in  discharge  of  the  debt,  in  trust,  and  sell  the  P™™!80 
same.     United  States  v.  Lane's  Administrators,  3   McLean,  365 ;  bu 
Neilson  v.  Lngovv,   12  How.  107-8.    The  above  decisions  quoted 
and  approved.      Dikes  v.  Miller,  25  Tex.  (I860:)  and  held,  that, 
upon  the  same  principle,  the  owner  of  land  may  file  a  release 
in  the   general   land-office,  and   divest   himself  of  the   right   to 
yecover.     Id. ;    Paschal' s   Annotated   Digest,    note   4.      Absolute  What  was 
sovereignty,  and  complete  supremacy  in  the  exercise  of  all  govern-  intended? 
mental  powers  confided   to   the  National    Government,  were  in 
tended  to  be  secured;  and  it  is  believed  that  such  intention  was 
accomplished.     Metropolitan  Bank  v.  Van  Dyck,  27  N.  Y.  Rep.  407. 
The  powers  of  the  General   Government  and  of  the  States,  al-  Distinguish 
though  both  exist,  and  are  exercised  within  the  same  territorial the  Powers  ? 
limits,  are  yet  separate  and  distinct  sovereignties,  acting  separately 
and  independently  of  each  other  within  their  respective  spheres.         71. 
And  the  sphere  of  action  appropriated  to  the  United  States  is  as 
far  beyond  judicial  process  issued  by  a  State  Judge  or  a  State        138. 
Court,  as  if  the  line  of  division  were  traced  by  landmarks  and  monu 
ments  visible  to  the  naked  eye.  (Ableman  v.  Booth,  21  How.  506, 
516);    Metropolitan  Bank  v.   Dan   Dyck,  27   N.  Y.  R.  411.     See 
also  Story's  Const.   §  413;  The  People  v.  New  York  Central  Rail 
road  Company,  24  N.  Y.  485,  486 ;  Newell  v.  the  People,  3  Seld. 
93;  Gibons  v.  Ogden,  9  Wheat.  188;  Martin  v.  Hunter,  1  Wheat. 
304,  326,  327 ;  McCulloch  v.  Maryland,  4  Wheat.  416,  for  the  rules 
of  interpretation  as  to  the  powers  hereinafter  granted. 
3* 


58        LEGISLATIVE  POWER,    14,    15,    16.     [Art.  I.,  Sec.    1,.2., 

ARTICLE  I. 

where  is  the     SEC.  I. — All  legislative  powers  herein  granted,  shall 
poScrf **    be  vested  in  a  Congress  of  the  United  States,  which 
shall  consist   of  a   senate   and   house   of  representa 
tives. 

What  is  14.  LEGISLATIVE  POWER  is  the  law-making  power  or  supreme 

legislative    power,    wherein,  according  to  Blackstone,  resides  the  sovereignty, 
power?         or  aj.  ieas£  the  exercise  of  sovereignty,  of  the  State.     1  131.  Com. 
49. 

Why  a  15.  CONGRESS. — An  assembly  of  persons  ;  an  assembly  of  en- 

Congress?  voys,  commissioners,  or  deputies.  An  assembly  of  represen 
tatives  from  different  governments  to  concert  measures  for  their 
common  good,  or  to  adjust  their  mutual  concerns.  "Webster. 
Here  it  is  the  National  Legislature.  1  Kent's  Com.  221 ;  Burrill's 
Law  Die.,  CONGRESS. 

The  word  was  doubtless  transferred  from  the  Articles  of  Con 
federation,  where  each  State  expressly  retains  its  sovereignty,  free 
dom,  and  independence,  and  every  power,  jurisdiction,  and  right 
which  is  not  by  this  Confederation  expressly  delegated  to  the 
United  States  in  Congress  assembled.  The  government  was  only 
"  a  firm  league  of  friendship/'  Art.  2,  ante,  p.  9. 

Is  this  wise?  The  wisdom  of  this  division  of  legislative  power  into  two 
branches  has  been  vindicated  by  our  wisest  statesmen.  Story's 
Const,  chap.  viii.  §  545-570;  1  Kent's  Com.  208-210;  The  Federal 
ist,  No.  22 ;  De  Lolme  on  the  Constitution  of  England,  B.  2,  chap, 
iii. ;  Randolph's  Letter,  3  Amer.  Museum,  62,  66;  Adams's  De 
fense  of  American  Constitutions,  105,  106.  121,  284,  286;  2  Pitk. 
Hist.  294,  305,  316;  Paley's  Moral  Philosophy,  b.  6,  ch.  vii. ; 
Wilson's  Law  Lect.  393-405. 

In  regular  logical  consecutive  order  the  Senate  should  be  first 
defined,  but  it  is  not.  [ED.] 

of  what  is  SEC.  II. — [l.]  The  house  of  representatives  shall  he 
represent^  composed  of  members  chosen  every  second  year  by 
the  people  of  the  several  States ;  and  the  electors  in 
each  State  shall  have  the  qualifications  requisite  for 
electors  of  the  most  numerous  branch  of  the  State 
legislature. 

Why  by  the  16.  The  House  simply  means  the  popular  branch.  By  THE 
people  of  PEOPLE  is  meant  the  wise  principle  of  direct  representation  and 
BUiSf  responsibility.  (The  Federalist,  Nos.  40-52;  1  Wilson's  Law 

Lect.     429-433;    2   Id.    124-128;    1  Tucker's  Blacks.  Com.,  App. 

28;   Paley's  Moral  Philosophy,  b.  6,  ch.  6);  Story's  Const.  §  571- 
What  576:  Curtis's  Hist,  of  the  Const.  148. 

people?  "'THE  PEOPLE"  are  that  portion  of  the  citizens  of  the  United 


C1-  !•]  QUALIFICATIONS,    16.  59 

States  who  are  the  resident  inhabitants  of  particular  States.  Aliens 

are  excluded.    Farrar,  §  24-38.      This  accords  with  Mr.  Calhoun's  24-38. 

speech  upon  the  admission  of  Michigan.     But  it  is  not  sustained 

by  practice,  and  was  denied  in  the  speeches  by  Mr.  Stephens  and 

others  on  the  adtnission  of  Minnesota.     Properly,  "  THE  PEOPLE  "  6,  21-25,  220. 

here  really  mean  the  qualified  voters.     But  here   Mr.  Farrar  con 

tends  that  Congress  may  prescribe  the  qualifications.    Farrar,  §  124 

-141.     Mr.  Farrar  admits  the  practice  to  be  contrary  to  his  theory, 

but  insists  that  an  alien  is  not  an  inhabitant.     (College  v.  Gove. 

5  Pick.  373);  Farrar,  §  133.     It  will  be  observed  that  the  elec-  Who  are 

lions  are   by   "the   people   of    the   several  States."      But   wnat  clectors  ? 

people  shall  vote  ?     They  are  the  "electors  of  the  most  numer 

ous   branch   of   the   State   legislature."      There   was   then    very 

little   uniformity   as   to   these   voters.     2.    Elliot's    Debates,    38; 

2    Wilson's   Law   Lecture,   128-131;    Federalist,    No.    52    to    54; 

Story's  Const,    chap.    9,    §    570,  et  seq.    2    Curtis's    Hist,    of  the 

Const.  198.    Time  has  only  lessened  the  uniformity,  for  many  of 

the  States  allow  unnaturalized  aliens  to  vote.     See  the  constitu-  la  a 


tions  of    Illinois,  Indiana,  and  Michigan,   and   the   congressional  °"e  °f  tho 
debate  upon  suffrage,  1865-66.     In  the  Dred  Scott  en  se  the  sub-  pe 
ject  was  fully  discussed,  and  it  was   said   that,  while   congress 
possessed  the   exclusive   power  of  naturalization,  a  negro   could        220. 
not  be  made  a  citizen  of  the    United  States;  that  a  State  could 
confer  the  right  of  suffrage  on  an  alien,  or  any  one  else,  but  it  May  he  be  a 
could   not   thereby   make    them    citizens   of    the    United   States.  votcr? 
Scott  v.  Sandford,  19  How.  404-414. 

The  Constitution  of  the  Confederate  States,  which  showed  the  What  of  the 
Southern  mind  as  to  proper  amendments,  interpolated  the  words  ^^eratc 
"  shall  be  citizens  of  the  Confederate  States.'11    And  to  the  section  was  tionf    " 
added  a  clause,  "  but  no  person  of  foreign  birth,  not  a  citizen  of  the 
Confederate  States,  shall  be  allowed  to  vote  for  any  officer,  civil  or  po 
litical,  State  or  federal.11     Paschal's  Annotated  Digest,  p.  86. 

This  proved  the  willingness  to  make   suffrage  a  matter  of  ua-  6,  220. 
tional  legislation,  and  the  determination  to  avoid  participation  in 
the  elections  by  persons  who  were  not  national  citizens. 

Mr.  Farrar  has  only  followed  these  extreme  views.     The  ques-  what  is  the 
tion  of    limited  suffrage,  and  the  motives  which  influenced  the  reason  of  the 
Convention  to  leave  the  power  with  the  States,  will  be  found  in  the  rulc  ? 
following  authorities:   1  Blacks.  Com.  171,  172,  463,464:  Montes 
quieu's  Spirit  of  Laws,  b.  11,  chap.  vi.  ;  Paley's  Moral  Philosophy, 
b.  1  1,  chap.  vi.  ;  Locke  on  Government,  p.  2,  §§  149,  227  ;   Adams's 
Amer.  Const.,  letter  vi.  pp.  263,  440  ;  Jefferson's  Notes  on  Virginia, 
191;    Story's.   Const.  576-587  ;  Curtis's  Hist,  of  the   Const.   187, 
194,  200. 

QUALIFICATIONS.  —  The  word  as  here  used  is  hardly  within  any  what  means 
of  the  ordinary  significations.     Webster's  Die.,  QUALIFICATION.         qunlifica- 
There    was   this   logic   and    consistency  in   the  rule  adopted  :       n 

1.  Those  who  indirectly  elect  the  senators  and  the  president  and  19.^35,  46, 
vice-president,   directly  elect    the     representatives   in    Congress.  167- 

2.  The  National  Constitution  could  not  well  fix  a  rule  as  to  voters 
for  Congress  without  also  extending  it  to  all  elections.     3.  Any 


CO 


QUALIFICATIONS,    16,  17.      [Art,  I.,  Sec.    2., 


Alabama  ? 


Arkansas  ? 


Connecti 
cut? 


absolute  abuse  of  the  rights  of  electors,  such  as  transferring  the 
choice  to  other  magistrates,  or  to  a  particular  profession,  would  be 
subject  to  the  guaranty  of  a  republican  form  of  government. 

What  are  17.  The  following  are  the  "QUALIFICATIONS"  for  electors  in  the 
the  qualifica-  different  States  at  the  present  time  :  In  all  the  States,  males  twenty- 
SW  one  years  of  ago. 

ALABAMA.  —  White  citizens  of  the  United  States  ;  residence  in  the 
State  one  year,  and  in  the  county  three  months.  Soldiers,  seamen, 
and  marines  of  the  United  States,  and  persons  infamous  for  crime 
excluded.  Const,  of  30th  Sept.,  1865.  Hough,  New  York  Con 
vention  Manual,  82.  See  new  Constitution  of  1867. 

ARKANSAS.  —  White  citizens  of  the  United  States  :  six  months 
residence  ;  soldiers,  seamen,  and  marines  in  time  of  peace  excluded. 
Constitution  of  1864-'5.  Id.  85. 

California  ?  CALIFORNIA.  —  White  citizens  of  the  United  States  and  of  Mexico, 
who  shall  have  elected  to  become  citizens  of  the  United  States 
under  the  treaty  of  the  30th  May,  1848.  Indians  may  be  qualified 
by  two-thirds  of  the  legislature.  —  Constitution  of  13th  October, 
1849.  Id.  96,  97. 

CONNECTICUT.  —  Every  white  male  citizen  of  the  United  States; 
one  year's  residence  ;  freehold  of  the  yearly  value  of  six  dollars  ; 
good  moral  character  ;  able  to  read  any  article  of  the  Constitution, 
or  any  section  of  the  statutes  of  the  State.  Amendments  of 
October,  1845,  and  October,  1855.  Id.  115. 

Delaware  ?  DELAWARE.  —  Free  white  citizens  of  the  United  States  ;  one  year's 
residence  ;  having  paid  a  county  tax  within  two  years,  which  had 
been  assessed  at  least  six  months  before  the  election  ;  no  tax  if 
between  twenty-one  and  twenty  -two  years  old  ;  no  person  in  the 
military,  naval,  or  marine  service  of  the  United  States  shall  be  con 
sidered  as  acquiring  a  residence  in  this  State  by  being  stationed  in 
any  garrison,  barrack,  or  military  or  naval  place  or  station  within 
this  State  ;  and  no  idiot  or  insane  person,  or  pauper  or  person  con 
victed  of  any  crime  deemed  by  law  felony,  shall  enjoy  the  right  of  an 
elector.  Constitution  of  2d  December,  1831.  Id.  121. 

Florida  ?  FLORIDA.  —  Citizens  of  the  United  States,  with  'one  year's  resi 

dence.  Officers,  soldiers,  and  marines  of  the  army  and  navy  do 
not  thereby  acquire  residence.  The  legislature  may  exclude  per 
sons  convicted  of  infamous  crimes.  Constitution  of  7th  November, 
1865.  Id.  135. 

Georgia?  GEORGIA.  —  Free  white  male  citizens  of  this  State  and  of  the  Uni 
ted  States;  have  paid  all  taxes  required  of  them,  and  which  they 
have  had  an  opportunity  of  paying,  for  one  year  preceding  the  elec 
tion  ;  two  years'  residence  in  the  State  and  one  year  in  the  county. 
Constitution  of  7th  Nov.,  1865.  Id.  149. 

Illinois?  ILLINOIS.  —  White  male  citizens.    Residence  one  year;  inhabitants 

of  one  year's  residence  at  the  adoption  of  the  Constitution.  Consti 
tution  of  31st  August,  1847.  Id.  169. 


01.  1.]  QUALIFICATIONS,    17.  Gl 

INDIANA. — White  male  citizens  of  the  United  States ;  six  mouths  Indiana  ? 
residence ;  if  of  foreign  birth,  one  year's  residence  in  the  United 
States  and  six  months  in  this  State ;  and  shall  have  declared  his  in 
tention  to  become  a  citizen  of  the  United  States,  conformably  to  the 
laws  on  the  subject  of  naturalization.  No  soldier,  seaman,  or  ma 
rine  of  the  United  States,  or  of  their  allies,  shall  be  deemed  to  have 
acquired  a  residence  in  the  State  in  consequence  of  having  been 
within  the  same;  nor  shall  any  such  soldier,  seaman,  or  marine 
have  the  right  to  vote.  No  negro  or  mulatto  shall  have  the  right 
to  vote.  Const,  of  10th  Feb.,  1865.  Id.  171. 

IOWA. — "White  male  citizens  of  the  United  States;  six  months  Iowa? 
residence  in  the  State  and  sixty  days  in  the  county.     Persons  in 
the  military,  naval,  or  marine  service  of  the  United  States;  idiots, 
insane, -or  convicted  of  infamous  crimes  excluded.    Const,  of  the  5th 
March,  1857.     Id.  184. 

KANSAS. — Citizens  of  the  United  States;  or  persons  of  foreign  Kansas ? 
birth  who  shall  have  declared  their  intentions  to  become  citizens, 
conformably  to  the  laws  of  the  United  States  on  the  subject  of  natu 
ralization;  six  months  residence  in  the  State,  and  thirty  days  in  the 
township.  No  person  under  guardianship,  non  compos  mentis,  or 
insane,  or  any  person  convicted  of  treason  or  felony,  unless  restored 
to  civil  rights,  nor  any  soldier,  seaman,  or  marine  shall  be  allowed 
to  vote.  Const,  of  29th  July,  1859.  Id.  202. 

KENTUCKY. — Free  white  male  citizens ;  residence  two  years  in  Kentucky  ? 
the  State,  or  one  year  in  the  county,  town,  or  city  in  which  he 
offers  to  vote,  and  sixty  days  in  the  precinct.     Const,  of  llth  June, 
1850.     Id.  210. 

LOUISIANA. — White  male  citizens  of  the  United  States ;  residence  Louisiana? 
in  the  State  twelve  months,  and  three  months  in  the  parish.    Const, 
of  Sept.,  1854.     Id.  227. 

MAINE. — Male  citizens  of  the  United  States,  excepting  pau-  Maine  ? 
pers,  persons  under  guardianship,  and  Indians  not  taxed;  estab 
lished  residence  three  months.  Persons  in  the  military,  naval,  or 
marine  service  of  the  United  States  or  this  State,  and  students  not 
deemed  to  have  acquired  residence.  Const,  of  29th  Oct..  1819. 
Id.  240. 

MARYLAND. — White  male  citizens  of  the  United  States ;   resi-  Maryland  ? 
dence  one  year  in  the  State  and  six  months  in  the  county.     Const. 
of  1867  (and  so  of  1864).     Id.  250. 

MASSACHUSETTS. — Male  citizens  (excepting  persons  or  paupers  Massachu- 
under  guardianship);  residence  in  the  State  one  year;  in  the  townsetts? 
or  district  six  months ;  having  paid  all  required  taxes.      Const,  of 
1780,  as  amended.     Id.  294.     Amendment,  Art.  XX.     No  person 
shall  have  the  right  to  vote,  or  be  eligible  to  office,  under  this 
Commonwealth,  who  shall  not  be  able  to  read  the  Constitution  in 
the  English  language  and  write  his  name ;    Provided,  however,  that 
the  provisions  of  this  amendment  shall  not  apply  to  any  person 
prevented  by  physical  disability  from  complying  with  its  requisi- 


62  QUALIFICATIONS,    17.  [Art.  I.,  Sec.  2., 

tions,  nor  to  any  person  who  now  has  the  right  to  vote,  nor  to  any 
person  who  shall  be  sixty  years  of  age  or  upward  at  the  time  this 
amendment  takes  effect.  Id.  298.  By  amendment  XXVI.,  of  1850, 
persons  of  foreign  birth  not  allowed  to  vote  until  two  years  after 
naturalization.  Id.  300. 

Michigan?  MICHIGAN. — Every  white  male  citizen;  every  white  male  inhabi 
tant  residing  in  the  State  on  the  24th  day  of  June,  1 835 ;  every 
white  male  inhabitant  on  the  first  day  of  January,  1850,  who  has 
declared  his  intention  to  become  a  citizen  of  the  United  States,  pur 
suant  to  the  laws  thereof,  six  months  preceding  an  election,  or  who 
has  resided  in  this  State  two  years  and  six  months,  and  declared 
his  intention  as  aforesaid ;  and  every  civilized  male  inhabitant  of 
Indian  descent,  a  native  of  the  United  States  and  not  a  member  of  any 
Indian  tribe,  shall  be  an  elector  and  entitled  to  vote.  Residence 
three  months  in  the  State.  Const,  of  1850.  Id.  307.  Persons  ab 
sent  in  the  actual  military  service  of  the  United  States  not  disquali 
fied.  Presence  in  such  service  is  not  residence.  Id.  308. 

Minnesota?  MINNESOTA. — 1.  "White  citizens  of  the  United  States ;  2.  White 
persons  of  foreign  birth  who  shall  have  declared  their  intention  to 
become  citizens ;  3.  Persons  mixed  with  white  and  Indian  blood, 
who  have  adopted  the  customs  and  habits  of  civilization ;  4.  Per 
sons  of  Indian  blood  residing  in  this  State  who  have  adopted  the 
language,  customs,  and  habits  of  civilization,  after  an  examination 
before  any  district  court  of  the  State,  &c.,  and  pronounced  capable 
of  citizenship;  residence  one  year  in  the  United  States  and  four 
months  in  the  State  before  the  election.  Const,  of  1857-8.  Id.  325. 

Mississippi  ?  MISSISSIPPI. — Free  white  male  citizens  of  the  United  States ;  one 
year's  residence  in  the  State,  four  months  in  the  county  or  town. 
Const.  1832  as  amended  in  1865.  Id.  336. 

Missouri  ?  MISSOURI. — White  male  citizens  of  the  United  States,  and  every 
white  male  person  of  foreign  birth  who  may  have  declared  his 
intention  to  become  a  citizen  of  the  United  States,  according  to  law, 
not  less  than  one  year  nor  more  than  five  years  before  lie  offers  to 
vote;  residence  one  year  in  the  State  and  sixty  days  in  the  county, 
143.  city,  or  town.  The  disqualification  of  all  who  participated  in  or 
sympathized  with  :  he  rebellion  is  most  searching  and  comprehen 
sive.  After  1870,  new  voters  must  be  able  to  read  and  write  or  be 
disabled  therefrom  by  physical  disability.  Const,  of  18G5.  348-351. 

Nebraska  ?  NEBRASKA. — 1.  White  male  citizens  of  the  United  States ; 
2.  White  persons  of  foreign  birth  who  shall  have  declared  their  in 
tention  to  become  citizens,  conformably  to  the  laws  of  the  United 
States  on  the  subject  of  naturalization.  Const,  of  1867.  Id.  371. 

By  the  act  of  admission  agreed  to  by  the  legislature,  the  right  is 
not  restricted  to  whites. 

This  State  was  admitted  March,  1867,  as  the  37th  State. 

Nevada?  NEVADA. — Every  white  male  citizen  of  the  United  States;  resi 

dence  six  months  in  the  State  and  thirty  days  in  the  county:  per 
sons  convicted  of  treason  or  felony  and  not  restored  to  civil  rights, 


01.  1.]  QUALIFICATIONS,   17.  63 

or  who,  after  arriving  at  the  age  of  eighteen  years,  shall  have  volun 
tarily  borne  arms  against  the  United  States,  or  held  civil  or  military 
office  under  the  so-called  Confederate  States,  unless  an  amnesty  be 
granted  to  such  person  by  the  Federal  Government,  excluded  ;  also 
idiots  and  insane  persons.  Const,  of  18G4.  Id.  380,  381. 

NEW  HAMPSHIRE. — Every  male  inhabitant  of  each  town,  and  New  Hamp- 
parish  with  town  privileges,  and  places  unincorporated,  excepting  shire? 
paupers,  and  persons  excused  from  paying  taxes  at  their  own  re 
quest.     Const,  of  1792.     Id.  403. 

NEW  JERSEY.— White  male  citizens  of  the  United  States;  resi-  New  Jersey? 
dence  one  year  in  the  State  and  five  months  in  the  county;  officers, 
soldiers,  and  marines  of  the  United  States  do  not  acquire* residence ; 
paupers,  idiots,  and  insane  persons  and  persons  infamous  excluded. 
Const,  of  1844.     Id.  413. 

NEW  YORK. — Male  citizens  who  shall  have  been  such  ten  days :  New  York  T 
residence  in  the  State  one  year,  and  in  the  county  four  months. 
Men  of  color,  unless  citizens  of  this  State  for  three  years,  and  for 
one  year  seized  of  a  freehold  of  the  value  of  two  hundred  and 
fifty  dollars,  on  which  they  shall  have  paid  a  tax,  excluded.  Ab 
sence  in  military  service  does  not  exclude.  Const,  of  1846,  as 
amended  in  1863.  Id.  49,  50. 

NORTH  CAROLINA. — Every  free  white  man — being  a  native  or  North 
naturalized  citizen  of  the  United  States,  and  who  has  been  an  in-  Carolina  ? 
habitant  of  this  State  for  twelve  months  immediately  preceding 
the  day  of  election,  and  shall  have  paid  all  taxes.     Amendment  of 
llth  December,  1856,  ratified  10th  September,  1857.     Id.  431. 

OHIO. — Free  white  male  citizens  of  the  United  States;   residence  Ohio? 
one  year  in  the  State.     Soldiers,  marines,  idiots,  and  insane  per 
sons   excluded.      Mulattoes  in  a  certain   degree   are    excluded. 
Const,  of  1851.    Id.  438. 

OREGON.— "White  male  citizens  of  the  United  States,  and  white  Oregon? 
males  of  foreign  birth  who  shall  have  declared  their  intention;  res 
idence  one  year  as  to  foreigners  and  six  months  as  to  citizens. 
Sailors,   soldiers,  idiots,  insane,  Chinamen,  and  negroes   excluded. 
Const,  of  1857.     Id.  449. 

PENNSYLVANIA. — Freemen;  residence  one  year;  must  have  paid  Pennsyl- 
taxes  within    two   years;    white  freemen,  citizens  of  the  United  vania? 
States,   between  twenty-one  and   twenty-two   years   of   age,  not 
obliged  to  have  paid  taxes ;  if  absent  in  the  military  service  of  the 
United  States,  electors  not  to  lose  the  right  to  vote.     Const,  of 
1838,  as  amended  in  1857  and  1864.  Id.  472. 

RHODE  ISLAND. — Male  citizens  of  the  United  States;  residence  Khode 
one  year ;  real  estate  in  the  State  of  the  value  of  one  hundred  and  Island  ? 
thirty-four  dollars,  or  which  brings  a  clear  rental  of  seven  dollars 
per  annum.     Soldiers,  marines,  &c.,  do  not  thereby  acquire  a  resi 
dence  ;  paupers,  lunatics,  or  persons  non  compos  mentis,  and  Xarra- 
ganset  Indians,  specially  excluded.     Const,  of  1842.  Id.  474,  475. 
•Soldiers  absent  in  actual  military  service  allowed  to  vote.  Id.  481. 


64 


QUALIFICATIONS,    17.          [Art.  I.,  Sec.   2., 


South  SOUTH  CAROLINA. — Free  white  men  ;  residence  two  years  in  tr.o 

Carolina  ?      gtate  and  six  months  in  the  district ;  immigrants  from  Europe  with 

like  residence  who  have  declared  their  intention  to  be  naturalized ; 

paupers,  soldiers,  and  marines  specially  excluded.     Const,  of  1865. 

Id.  486. 

Tennessee  ?  TENNESSEE. — White  men,  citizens  of  the  United  States  (certain 
blacks  included  under  previous  constitution) ;  residence  one  year. 
Const,  of  1839.  Id.  495. 

By  the  amendment  of  1866,  §  9,  the  qualifications  of  voters  and 
the  limitation  of  the  elective  franchise  may  be  determined  by  the 
General  Assembly  which  shall  first  assemble  under  the  amended 
constitution.  Id.  504.  The  General  Assembly  extended  the  right 
of  suffrage  to  the  blacks,  and  excluded  certain  classes  of  those 
engaged  in  the  rebellion. 

Texas  ?  TEXAS. — Every  free  male  person,  who  shall  be  a  citizen  of  the 

United  States*  (Indians  not  taxed,  Africans,  and  descendants  of 
Africans  excepted) ;  residence  one  year  in  the  State  and  six  months 
in  the  county.  Const,  of  18G6.  Id.  507.  The  words,  "  or  who  is,  at 
the  time  of  the  adoption  of  the  Constitution  by  the  Congress  of 
the  United  States,  a  citizen  of  Texas,"  were  in  the  Constitution 
of  1845,  but  were  omitted  from  the  revision.  Paschal's  Anno 
tated  Digest,  51,  932. 

Vermont  ?  VERMONT. — Freemen,  of  the  State,  who  are  natural  born  citizens 
of  Vermont  or  some  one  of  the  United  States,  or  naturalized. 
Const,  of  1793  as  amended.  New  York  Convention  Manual,  by 
Hough,  523,  529. 

Virginia?  VIRGINIA. — White  male  citizens  of  the  Commonwealth;  resi 
dence  one  year  in  the  State  and  six  months  in  the  county.  Must 
have  paid  the  previous  year's  assessment  of  taxes.  Const,  of  1864. 
Id.  533,  545. 

West  WEST  VIRGINIA. — White  male  citizens  of  the  State ;  residence 

Virginia?  one  year.  Paupers,  convicts  of  treason,  felony,  or  bribery  in  elec 
tion,  persons  who  have  given  aid  to  the  rebellion,  unless  he  has 
volunteered  into  the  military  and  naval  service  of  the  United 
States  and  been  honorably  discharged  therefrom,  excluded.  Const. 
1861-3,  as  amended  24th  May,  1866.  Id.  547,  548. 

Wisconsin?  WISCONSIN. — 1.  Citizens  of  the  United  States.  2.  Persons  of 
foreign  birth  who  shall  have  declared  their  intention  to  become 
citizens,  conformably  to  the  laws  of  the  United  States  on  the  sub 
ject  of  naturalization.  (The  word  "  white  "  was  stricken  out  by 
amendment.') 

3.  Persons  of  Indian  blood  who  have  once  been  declared  by  law 
of  Congress  to  be  citizens  of  the  United  States,  any  subsequent 
law  of  Congress  to  the  contrary  notwithstanding. 

4.  Civilized  persons  of  Indian  descent,  not  members  of  any  tribe. 
Const,  of  1848.  Id.  561,  562. 

Is  there  any      It  will  thus  be  seen  that  the  only  uniformity  is,  that  electors  in 
uniformity  ?  an  the  States  require  tho  qualification  of  being  males  over  twenty- 


Cl-  I-]  QUALIFICATIONS-CITIZEN,    17,    18.  65 

one  years  of  age,  and  of  residence  longer  or  shorter.  The  general 
rule  is,  "white  citizens  of  the  United  States ;"  but  negroes  or  persons 
of  African  descent  are  electors  in  all  New  England  except  Con 
necticut;  in  Nebraska,  Tennessee,  Wisconsin,  and  by  construction, 
perhaps,  in  other  States;  persons  in  the  military  and  naval  service 
are  excluded  in  some  States,  and  idiots,  lunatics,  and  persons  non 
compos  mentis  in  others. 

In  Oregon,  Chinamen  are  excluded.     In  all  the  late  fifteen  slave 
States,  except  Tennessee,  persons  of  African  descent  are  excluded. 
In   Indiana,    Michigan,   Wisconsin,   Oregon,   and   South   Carolina, 
unnaturalized  persons  of  longer  or  shorter  residence  who  have 
declared  their  intention  are  voters;  while  in  Massachusetts  the 
naturalized  are  excluded  until  two  years  after  naturalization.     In  a 
few  of  the  northwestern  States  Indians  are  allowed  to  vote.     The 
qualification  of  freeholder  or  tax-payer  is  required  in  a  few  States ; 
and  the  beuetit  of  clergy  or  the  power  to  read  and  write  is  required 
in  two  States.     Disqualification  for  infamous  offenses  exists  in  a 
few  States.     So  that  in  fact  there  is  no  uniformity  except  as  to  sex  What  is  the 
and  age,  and  less  than  there  was  at  the  formation  of  the  federal  only  uny 
Coustitution.  The  qualifications  in  no  two  States  were  exactly  alike.  tormity ? 
Story's  Const.,  §  637  ;  The  Federalist,  No.  54.     As  to  the  free  per 
sons  of  African  descent,  while  they  were  only  half  a  million,  the         24- 
majority  of  whom  resided  in  the  slave  States,  "  de  mini  mis  non  "Why  the  ne- 
curat  lex,'1  seems  to  have  been  the  maxim.     But  now  that  they  are  oe^tjr  of  a 
one-eighth  of  the  whole  population,  and  constitute  a  majority  of  rulV?'m 
"citizens  of  the  United  States"  in  several  States,  whatever  may 
have  been  our  habits  of  thought,  the  statesman  and  the  philosopher        220. 
is  obliged  to  face  the  question,  and  to  consider  the  propriety  of  a 
uniform  rule  for  electors. 

18.  But  citizenship  of  the  United  States,  or  of  a  State,  does  not  Is  citizen- 
of  itself  give  the  right  to  vote;  nor,  e  conrerso,  does  the  want  of  it  8njP  ^ 
prevent  a  State  from  conferring  the  right  of  suffrage.     Scott  v.  &u 
Sandford,  19  How.  422. 

The  right  of  suffrage  is  the  right  to  choose  officers  of  the  govern-  What  is  the 
ment ;  and  it  does  not  carry  along  the  right  of  citizenship.     Bates  g^^j 
on  Citizenship,  4,  5.     Our  laws  make  no  provision  for  the  loss  or  su  rA°* ' 
deprivation  of  citizenship.     Id. 

The  word  CITIZEN  is  not  mentioned  in  this  clause,  and  its  idea  Does  this 
is  excluded  in  the   QUALIFICATIONS  for  suffrage   in  all  the  State  section  ex- 
constitutions.     Id.  5,  6.  JdSrofdtJ 

American  citizenship   does   not   necessarily  depend    upon    nor  zen  ? 
coexist  with  the  legal  capacity  to  hold  office  or  the  right  of  suffrage,  Does  citi- 
either  or  both  of  them.  zcnship  de- 

No  person  in  the  United  States  did  ever  exercise  the  right  of  ^ffrage  ? 
suffrage  in  virtue  of  the  naked,  unassisted  fact  of  citizenship.     Id.          «j^ 

There  is  a  distinction  between  political  rights  and  political  powers.  -^yhat  is  ^^ 
The  former  belong  to  all  citizens  alike,  and  cohere  in  the  very  distinction 
name  and  nature  of  citizenship.     The  latter  (voting  and  holding  be[.w.e«IJ 
office)  does  not  belong  to  all  citizens  alike,  nor  to  any  citizen  merely  [.'^'^nd 
in  virtue  of  citizenship.     His  potver  always  depends   upon  extra-  power*? 
neous    facts    and    superadded    qualifications;    which  facts    and  19,35,63,169, 


66  PERSON,    19,  20.  [Art.  L,  Sec.    2., 

1TO.        qualifications  are  common  to  both  citizens  and  aliens.     Bates  on 
Citizenship. 

what  arc  [2.]  No  person  shall  be  a  representative  who  shall 
cations* of  not  have  attained  to  the  age  of  twenty-five  years,  and 
th-es.sen  '  been  seven  years  a  citizen  of  the  United  States,  and 

who  shall  not,  when  elected,  be  an  inhabitant  of  that 

State  in  which  he  shall  be  chosen. 

What  19.  "  PERSON  "  is  here  undefined,  but  it  is  supposed  to  mean 

persons  ?      males.     A  representative  is  one  chosen  by  the  qualified  voters,  at 
46.        the  time  prescribed  by  the  States  or  Congress,  in  the  manner  pre- 
Eepresenta-  scribed  by  law,  and  having  the  qualifications  of  age,  citizenship, 
tive?  and  inhabitancy  or  domiciliation. 

Citizen  of        The  Constitution  having  fixed  the  qualifications  of  members,  no 
the  United  additional  qualifications  can  rightfully  be  required  by  the  States. 
Barney  v.   McCreery,  Cl.  &  Hall,  176:  Story's  Const.  §  624-629; 
Federalist,  No.  52.     But  if  a  country  be  conquered,  purchased,  or 
annexed,  and  the  inhabitants  thus  incorporated  by  such  revolutions, 
as  the  purchase  of  Louisiana  and  Florida,  the  annexation  of  Texas, 
220        and  the  conquest  and  cession  of  California,  the  inhabitants  become 
national  citizens,  and  are  eligible  to  office,  not  as  naturalized  people, 
,.        according  to  uniform  rule,  but  as  denizens  of  the  acquired  soil, 
whether  native  born  or  naturalized.     It  was  so  held  in  the  case  of 
Mr.  Levy  [Yulee],  of  Florida,  upon  a  contest  in  the  House  of 
Who  are       Representatives  of  the  United  States.     Mr.  Clark  of  Louisiana, 
citizens?       and  Senator  Porter,  of  that  State,  as  well  as  all  the  European 
inhabitants  of  Louisiana.  Florida,  Texas,  California,  New  Mexico, 
Arizona,  and  Walrussia,  and  all  born  upon  those  Territories,  owed 
their  naturalization  to  the  law  of  conquest,  purchase,  or  annexa 
tion.     Native  inhabitants  have  been  admitted  as  delegates  from 
New  Mexico,  under  the  general  description  of  citizenship. 

The  object  was  to  exclude  aliens.      Story's  Const.  §  612-629. 
See  Farrar,  §  256-281. 

Yet  "  PERSON  "  and  "  CITIZEN  "  in  this  sentence  cannot  have  the 
6,  17,  24,  35,  same  comprehensive  meaning  of  "PEOPLE  "  or  "  ELECTORS  "  in  the 
44,220.          preamble,  and  in  Art.  1,  §  1,  clause  1.     From  necessity  it  must 
have  a  limitation  beyond  what  is  defined  in  the  clause. 

Who  is  an         2O.  AN  INHABITANT  OP  A  STATE  is  one  who  is  bond  fide  "  a 

inhabitant     member  of  the  State,  subject  to  all  the  requisitions  of  its  laws,  and 

elected?        entitled  to  all  the  privileges  and  advantages  which  they  confer." 

22  23  44  46  Bailey's  Case,  Cl.  &  Hall,  411.  A  person  residing  in  the  District  of 

'  Columbia,  though  in  the  employment  of  the  general  government,  is 

not  an  inhabitant  of  a  State,  so  as  to  be  eligible  to  a  seat  in  congress. 

Id.  But  a  citizen  of  the  United  States,  residing  as  a  public  minister 

at  a  foreign  court,  does  not  lose  his  character  of  inhabitant  of  that 

State  of  which  he  is  a  citizen,  so  as  to  be  disqualified  for  election 

to  congress.    Id. :  Forsyth's  Case,  Id.  497.     See  Kamsay  v.  Smith, 

CL  &  Hall,  123.     Key's  Case,  Cl.  &  Hall,  224. 


01.  2,  3.]  EEPKESENTATIVES,    20-22.  67 

[3.]  Representatives  and  direct  taxes  shall  be  appor- what  is  the 
tioned  among  the  several  States  which  may  be  included  ment  of  re- 

.  ,  .        ,  .     -r-r    .  T  i  .•  prcsenta- 

withm  this  Union,  according  to  their  respective  num-  tives  and 
bers ;    which  shall  be  determined  by  adding  to  the 
whole  number  of  free  persons,  including  those  bound 
to  service  for  a  term  of  years,  and  excluding  Indians 
not  taxed,  three-fifths  of  all  other  persons.     The  actual 
enumeration  shall  be  made  within  three  years  after  the  Census? 
first  meeting  of  the  Congress  of  the  United  States,  and 
within  every  subsequent  term  of  ten  years,  in  such 
manner  as  they  shall  by  law  direct.    The  number  of  Number  of 

'  .          representa- 

representatives  shall  not  exceed  one  for  every  thirty  tives? 
thousand,  but  each  State  shall  have  at  least  one  repre 
sentative  ;  and,  until  such  enumeration  shall  be  made, 
the  State  of  New  Hampshire  shall  be  entitled  to  choose 
three,  Massachusetts  eight,  Rhode  Island  and  Provi 
dence  Plantations  one,  Connecticut  five,  New  York 
six,  New  Jersey  four,  Pennsylvania  eight,  Delaware 
one,  Maryland  six,  Virginia  ten,  North  Carolina  five, 
South  Carolina  five,  and  Georgia  three. 

21.  REPRESENTATIVES. — As  to  the  reasons   for  the  rule,  see  Give  facts  of 
Story's  Const.   §  630-689.      Notes  to  third  edition ;    1   Elliot's  Kepresenta. 
Debates,  212,  213 ;  2  Pitk.  Hist.  233-248.  numbers. 

As  the  population  has  increased,  the  ratio,  or  "numbers"  neces 
sary  to  elect  a  representative,  has  been  increased,  so  as  not  to  make 
the  body  too  large.  They  have  stood  through  each  decade  as 
follows  :— 1790— 43,000.  1  St.  253;  1800—33,000.  2  St.  128;  1810 
—35,000.  Act  of  21  Dec.,  1811,  ch.  9;  1820 — 40,000.  3  St.  651; 
1830—47,700.  4  St.  516;  1840—70.000.  5  St.  491 ;  1850—93.420. 
Rep.  population  divided  by  233,  9  St.  432,  433;  1860 — 126,823.  12 
St.  353;  2  Brightly's  Dig.  84.  Obtained  by  dividing  by  241,  giving  168. 
to  Ohio,  Kentucky,  Illinois,  Iowa,  Minnesota,  Vermont,  and  Rhode 
Island,  each  an  additional  member. 

22.  DIRECT  TAXES,  perhaps,  mean,  in  the  stricter  sense,  a  rate  What  nre 
imposed   by  government  upon  individuals   (polls),  lands,  houses,  direct  taxes? 
horses,  cattle,  possessions,  and  occupations,  as  distinguished  from 
customs,    duties,    imposts,  and  excises.      Webster.     See  Burrill's 

Law  Die.,  TAX. 

In  the  case  of  Hylton  v.  The  United  States  the  question  was  72-77, 144. 
much  discussed ;  but  no  authoritative   conclusion  seemed  to  be 


68 


DIRECT  TAXES,  22,  23.        [Art.  L,  Sec.  2., 


On   per 
sonals  ? 


"What  by 


apportion 

ment  ? 


144. 


163,164.  settled.  The  general  impression  seemed  to  be,  that  a  tax  on  real 
estate,  such  as  the  war  tax  of  1862,  might  be  intended. 

See  the  subject  discussed.    Story's  Const.  §  955-957. 

Only  four  direct  taxes  have  been  laid:  In  1798,  ]813,  1815, 
1861.  Story's  Const.  §  642;  2.  Brightly's  Dig.  407  ;  Internal  Rev 
enue  pamphlets  everywhere.  The  Internal  Revenue  tax  is  sup 
posed  to  come  under  a  different  classification. 

A  tax  on  carriages  is  not  a  direct  tax.  There  are  three  kinds 
of  taxes :  duties,  imposts,  and  excises,  which  are  to  be  laid  by  the 
rule  of  uniformity ;  and  capitation  and  direct  taxes  on  land,  which 
are  to  be  laid  by  the  rule  of  apportionment.  Hylton  v.  the  United 
am/' M-hatbV  States'  3  Dallas'  1 7 1-  License  Tax  Cases,  5  Wall.  477.  The  better 
opinion  seemed  to  be,  that  the  direct  taxes  were  a  capitation  or 
poll  tax,  or  a  tax  on  land.  Hylton  v.  United  States,  3  DalL  171; 
1  Kent's  Com.  255,  256.  This  does  not  preclude  the  right  to 
impose  a  direct  tax  in  the  District  of  Columbia  (and  the  Terri 
tories)  in  proportion  to  the  census  directed  to  be  taken  by  the 
Constitution.  Loughborough  v.  Blake,  5  Wh.  317;  1  Kent's  Com. 
256. 

How  nppor-  *J3.  APPORTIONED. — Proportion  and  ratio  are  equivalent  words  ; 
and  it  is  the  definition  of  proportion  among  numbers,  that  they 
have  a  ratio  common  to  all — a  common  divisor.  (Jefferson  in  1792.) 
Story's  Const.  3d  Ed.  §  683,  note  2  ;  which  note  also  contains  Mr. 
Webster's  report  on  fractional  numbers,  in  1832.  These  two  opposite 
views  exhaust  the  whole  argument.  See  Farrar,  §  131-141.  In 
these  he  discusses  "free  persons,"  and  "all  other  persons."  The 
practice  has  been  to  exclude  from  the  "  numbers  "  none  except 
two-tifths  of  the  slaves,  thus  counting  the  three-fifths  of  the  "all 
other  persons."  That  is,  five  slaves  were  only  equal  to  three  "free 
persons,"  whether  colored  or  aliens.  See  Story's  Const.  §  630-689, 
3d  Ed.,  and  the  voluminous  notes,  which  exhaust  the  whole  sub 
ject. 

24.  NUMBERS. — The  meaning  of  the  word  "numbers"  is,  that 
two-fifths  of  all  the  slaves  were  excluded;  but  the  free  negroes,  and 
all  other  persons,  except  tribes  of  Indians,  were  enumerated.  The 
total  numbers  by  the  eighth  census  (1860)  were: — 

In  the  free  States  and  Territories — whites 18,9:56,579 

"  "  "  free  colored 2:57,218 

In  the  slave  States — whites 8,039.000 

"  "  slaves 3,950,000 

"  "  free  colored 251,000 

Deduct  two-fifths  of  slave  population 1,580,000 

Leaving  a  representative  slave  population  of 2,370,000 

Total  free  population  in  the  States,  District  of  Columbia, 

and  Territories 27,463,797 

Total  slave  population 3,961, 1 29 

Ratio  of  representatives 127,381 

The  apportionment  of  representation  under  the  census  of  1860 
was  as  follows :  Alabama  6,  Arkansas  3,  California  3,  Connecticut 
4,  Delaware  1,  Florida  1,  Georgia  7,  Illinois  14,  Indiana  11,  Iowa 


IT,  18, 
144,  220. 


What  arc 
numbers  ? 


144,  23. 


01.  3.] 


NUMBEKS,    24. 


6,  Kentucky  9,  Louisiana  5,  Maine  5,  Maryland   5,  Massachusetts  What  -was 
10,  Michigan  6,  Minnesota  2,  Mississippi  5,  Missouri  9,  New  Hamp-  apportion- 
shire  3,  New  Jersey  5,  New  York  31,  North  Carolina  7,  Ohio  19,  JJJJfl  m 
Oregon   1,  Pennsylvania  24,  Rhode  Island  2,  South  Carolina  4, 
Tennessee  8,  Texas  4,  Vermont  3,  Virginia  11,  Wisconsin  6.     The 
territories  of   Kansas,  Nebraska,  and  Nevada  have   since   been 
admitted  as  States,  each  with  1  representative  ;  Colorado  has  been        168 
organized   under  an  enabling  act,  and  will   be   admitted  with  1 
representative;  Virginia  has  been  divided,  and  West  Virginia  has 
3  representatives,  leaving  Virginia  8. 

NUMBEKS  OF  THE  STATES  AND  TERRITORIES,  &C.-1860. 


STATES. 

CB.VBUS  OF   1860. 

I  1850 

TO  I860. 

Wkite. 

Free 
colored. 

Slave. 

Total 

White. 

Free 
colored. 

Slave. 

Total. 

Alabama  

526,431 
324,191 
361,353 
451,5-20 
90,589 
77,748 
591,588 
1,704,323 
1,339,1100 
673,844 
106,579 
919,517 

2,690 
144 

4,086 

Gn 

19,829 
932 
3,500 
7,628 
11,428 
1.069 
625 
10,684 
18,647 
1,327 
83,942 
9,602 
6,799 
259 
773 
3,572 
494 
25,318 
49,005 
30,463 
36,673 
128 
56,849 
3,952 
9,914 
7,300 
355 
709 
58,042 
1,171 

435,080 
111,115 

964,201 
435,450 
379,994 
460,147 
112,216 
140,425 
1,057,286 
1,711,951 
1,350,428 
674.913 
li)7  "116 

23.43 
99.88 
294.34 
24.35 
27.28 
64.70 
13.42 
101.45 
37.03 
251.18 

18.76 
81.25 
324.74 
12.14 
9.72 

27.18 
135.91 

24.96 
107.46 
:;io.37 
42.10 
22.60 
60.59 
16.6T 
101.06 
36.63 
251.14 

California. 

Connecticut  

1,798 
61,745 
462,198 

21.48; 
57.07 
21.10 

Florida  

Georgia  

19.41 
40.32 
1.47 
231.53 

Indiana  

i 

2->5,483 
331,726 

'"'sYjisg' 

Kentucky  

1,155,684 
70*,U»I2 
628,279 
687,049 
1,231,0*6 
749,113 
172,123 
791,305 
1.162,012 
326,073 
672,035 
3,880  735 
992,622 
2,339,511 
52,465 
2,906,115 
174,620 
703,708 
1,109,801 
604,21  5 
31  5,098 
1,596,318 
775,881 

20.76 
39.98 
7.76 
23.14 
23.95 
87.»9 
2,775.06 
19.H8 
79.64 
2.56 
38.92 
25.70 
14.12 
17.79 
299.92 
26.18 
13.62 
6.13 
9.24 
173.51 
0.31 
17.06 
154.20 

6.72 
6.78 
2.14/ 
12.35 
5.93 
163.22 
709.38 
16.S8/ 
36.44 
5.00/ 
6.33 
0.1  3/ 
10.92 
41.12 
38.1  6l 
6.01 
7.68 
10.65 
13.67 
10.58* 
1.25/ 
6.83 
8.44 

6.87 
35.50 

"'K52/ 

40.90  ' 
31.47 

17.54 

36.74 
7.74 
17.84 
23.73 
88.38 
2,760,^7 
30.47 
73.30 
2.55 
37.27 
25.29 
14.20 
18.14 
294.65 
25.71 
18.35 
5.27 
10.68 
164.22 
0.31 
1  2.29 
154.06 

Maine 

626,952 
515,<H8 
1,221,464 
742,314 
171,864 
353,901 
1,063,509 
325,579 
646,6«9 
3,831,730 
631,10(1 
2,302,838 
52  337 

Michigan  
Minnesota  

Mississippi                 .   .. 

436',63i 
114,931 

18 

'"VsY.osJJ" 

Missouri 

New  Hampshire  

92.31  / 
Yl.73 

New  York?  
North  Carolina  
Ohio 

Oregon  

Pennsylvania  

Rhode  Island 

2,84&,266 
170,668 
291,388 
826,782 
421,294 
314,389 
1,047,411 
774,710 

4.53 
15.14 

213.89 

'402,406 
275.719 
182,566 

490,865'  ' 

South  Carolina  

Texna 

Vermont  

Virsinia  

Wisconsin 

3.83 

TKRBITORIBS. 

Colorado  

26,706,425 
34,231 

476,536 
46 

3,950,531 

31,143,047 
34,277 

37.37 

12.30 

23.44 

35.04 

Nakota 

Debraska 

28,759 
6,812 
82,924 
40,214 
11,138 
60,764 

67 
45 
85 
30 
30 
11,131 

15 

28,841 
6.847 

Nevada  

61.94 
253.89 

83,009 
40,273 
<z426 
11  168 

34.73 
254.18 

Utah  

Washington 

29 

11.53 

District  of  Columbia  

3,185 

75,060 

60.15 

10.66 

13.62/ 

45.26 

35.59 

26.973,843 

487,970 

3,953,760 

31,443,322 

37.97 

1  2.33 

23.39 

[Preliminary  report  on  the  eighth  census,  page  131.] 


70 


NUMBEES,   24. 


[Art.  I.,  Sec.  2. 


The  following  table,  showing  the  population  of  the  States  at 
the  different  decades,  from  1790  to  1860,  has  been  prepared 
by  the  editor  with  great  care ;  and,  as  the  numbers  are 
taken  from  the  census  reports,  he  feels  confident  that  it  is 
correct  : — 


CTATBS. 

1790. 

1800. 

1810. 

1820. 

1830. 

1840. 

1850. 

1860. 

20  845 

127  901 

309  527 

690  756 

771  623 

964  201 

14  273 

30  388 

97  574 

209  897 

California  

92,597 

379,994 

238,141 
59096 

251,002 
64,273 

262,042 
72,674 

275,202 
72,749 

297,675 

76,748 

309,978 
78,085 

370,792 
91  532 

460,147 
112,216 

Florida 

34  730 

54  477 

87  445 

140  425 

Georgia 

82,548 

162,101 

252,433 

340,987 

516,823 

691,392 

906,185 

1,057,286 

12,282 

65,211 

157  445 

476  183 

851  470 

1,711  951 

4  875 

24  520 

147  178 

343  031 

685  866 

988  416 

1  350  428 

Iowa  

4V]  2 

192,214 

674,913 

Kansas  
Kentucky  

73,077 

220,955 

406,511 
76,556 

564,317 
1  53  407 

687,917 
215,739 

779,828 
352,411 

982,405 
517  762 

1,155,684 
708  002 

96  540 

151  719 

228  705 

298  335 

399  455 

501  793 

583  169 

628  279 

319,7-28 

341,548 

380,546 

407,350 

447,040 

470,017 

583,034 

687,049 

Massachusetts.  
Michigan 

378,717 

423,245 

472,040 
4,762 

623,281 
8,896 

610,408 
31,639 

737,699 
212,267 

994,514 
397  654 

1,231,066 
749,113 

6  077 

172  123 

Mississippi 

8,850 

40,359 

75,448 

136,621 

375,651 

606,526 

791,305 

Missouri 

20  845 

66  586 

140455 

383  702 

682,044 

1,182,611 

141,899 

183,762 

J14  360 

244,161 

269,328 

284,574 

317,976 

326,073 

184,139 

211,949 

245,555 

277,576 

320,823 

373,306 

489,555 

632,035 

New  York  
North  Carolina  
Ohio 

340,120 
393,751 

586,756 
478,103 
45  365 

959,049 
555,500 
237  760 

1,372.812 
638,829 
581  434 

f,918,608 
737,987 
937  903 

2,428,921 
753,419 
1  519  467 

3,097,394 
869,039 
1  980  329 

3,880,735 
992,622 
2339,511 

13  294 

5->  465 

Pennsylvania  
Rhode  Island  

434,373 
69,110 

602,361 
69,1  22 

810,091 
77,031 

1,049,458 
83,059 

1,348,233 
97.199 

1,724,033 
108,830 

2,311,786 
147,545 

2,906,115 
174,620 

South  Carolina  

249,073 
35  791 

345,591 
105,602 

415,115 
261  727 

502,741 
422  813 

581,18* 
681  904 

594,398 
829  210 

668,507 
1  002  717 

703,708 
1  109  801 

T 

212  592 

604  215 

V              t 

85  416 

154,465 

217,713 

235  764 

280,652 

"91  948 

'  314*120 

315,098 

Virginia.   .. 

748,308 

880,200 

974,622 

1,065,379 

1,211,405 

1,239,797 

1,421,661 

1,596,318 

Wisconsin 

30  945 

305  391 

775  881 

Total 

3  929  827 

5  291  832 

7  215  791 

9  605  192 

12826  186 

17  025  741 

23  067  262 

31  148  047 

TERRITORIES. 

36,538 

2  576 

28  841 

Nevada            .      ..     . 

17364 

New  Mexico 

61  547 

83  009 

Utah 

1  1  380 

40  699 

Wellington 

1M69 

District  of  Columbia 

14  093 

24  053 

33  029 

39  834 

43  712 

51  687 

75,080 

Total     

3,929,827 

5,305,925 

7,239,814 

9,638,131 

12,8  6,02< 

17,069,453 

23,191,876 

31,443,322 

And  see  Story's  Const.,  §  644,  note  1  of  3d  Ed.,  Preliminary  report  on  the 
eighth  census,  pages  5  and  131. 


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72  VACANCIES,   HOUSE,   25,    26.      [Art.  I.  Sec  2, 

How  are  [4.]  When  vacancies  happen  in  the  representation 

niui!in?les  from  any  State,  the  executive  authority  thereof  shall 
issue  writs  of  election  to  fill  such  vacancies. 

Upon  what  25.  The  executive  of  a  State  may  receive  the  resignation  of  a 
member,  and  issue  writs  for  a  new  election,  without  waiting  to  be 
informed  by  the  house  that  a  vacancy  exists*  Mercer's  Case,  Cl.  & 
Hall,  44;  Edwards's  Case,  Id.  92;  Newton's  Case,  February,  1847. 
Colonel  Yell  had  not  resigned;  but  had  become  a  colonel  of  vol 
unteers  in  the  army  in  the  war  against  Mexico,  in  1846.  The  gov 
ernor  assumed  that  the  two  offices  were  incompatible  :  arid,  after 
a  resolution  by  the  Arkansas  legislature  to  that  effect,  he  issued  a 
proclamation  for  an  election  to  fill  the  vacancy.  Thomas  C.  New 
ton  was  returned,  and  the  house  refused  to  consider  the  question 
of  vacancy. 

How  are  va-     Vacancies,  therefore,  may  be  created  by  death,  resignation,  re- 

canciea  moval,  or  accepting  incompatible  offices.  See  Paschal's  Annotated 
Digest,  note  200;  Powell  v.  Wilson,  16  Tex.  60;  The  People  v.  Car- 
rique,  2  Hill  93;  Bienconrt  v.  Parker,  27  Tex.  562. 

62,  151.  The  acceptance  of  an  incompatible  office  is  an  absolute  determi 

nation  of  the  original  office.  (Rex  v.  Trelawuey,  3  Burr.  1616; 
Millwood  v.  Thatcher,  2  Tr.  Rep.  87  ;  Wilcock  on  Municipal  Cor 
poration.  240,  61  7  ;  Angel  &  Amos  on  Corporations,  255  ;)  Biencourt 
v.  Parker,  27  Tex.  562. 

Power  of         [5.]  The  House  of  Representatives  shall  choose  their 
"°  "  Speaker   and   other   officers,  and  shall  have   the   sole 


What  is  the  26.  The  SPEAKER  is  the  presiding  officer  of  the  House  of  Repre- 
Speaker?  sentatives,  who  is  elected  at  the  meeting  of  the  tirst  session  of 
each  Congress,  and  before  there  can  be  any  organization.  At  the 
opening  of  the  34th  and  the  36th  Congresses,  there  being  three 
political  parties  represented,  there  were  very  great  debiys,  as  will 
be  seen  in  the  table.  The  Speaker  has  the  appointment  of  all 
standing  committees  ;  and  he  becomes  President  of  the  United 
States  in  the  absence  of  the  Vice-President,  and  of  the  presiding 
officer  of  the  Senate. 


01.  4,  5.]         SPEAKEKS,    IMPEACHMENT,    26,    27, 


73 


The  Speakers  have  been : — 


Name  the 
Speakers  ? 


Con- 

givss. 

Ses 
sion. 

Names  of  Speakers. 

Election,    or 
commence 
ment  of  ser 
vice. 

Termination 
of  service. 

States  of  which 
they  were  rep 
resentatives. 

1 

2 
3 
4 
5 
6 
7 
8 
9 
10 
11 
12 
13 
13 
14 
15 
16 
15 
17 
18 
19 
20 
21 
22 
23 
23 
24 
25 
26 
27 
28 
29 
30 
31 
32 
88 
84 
35 
36 
37 
38 
39 
40 

1 
1 
1 
1 
1 
1 
1 
1 
1 
1 
1 
1 
1 
2 
1 
1 
1 
2 
1 
1 
1 
1 
1 
1 
1 
1 
1 
1 
1 
1 
1 
1 
1 
1 
1 
1 
1 
1 
1 
1 
1 
1 
1 

Fred.  A.  Muhlenberg  

April  1,  17S9 
Oct.  24,  1791 
Dec.    2,1793 
Dec.    7,1795 
May  15,  1797 
Dec.    2,1799 
Dec.    7,1801 
Oct.  17,1803 
Dec.    2,1805 
Oct.  26,  1807 
May  22,  1809 
Nov.   4,  1811 
May  24,  1813 
Jan.  19,  1814 
Dec.    4,  1815 
Dec.    1,1817 
Dec.    6,  1819 
Nov.  15,  1820 
Dec.    3,  1821 
Dec.    1,1823 
Dec.    5,  1825 
Dec.    3,1827 
Dec.    7,  1829 
Dec.    5,  1831 
Dec.    2.1833 
June  2,  1834 
Dec.    7,  1835 
Sept.  4,1837 
Dec.  16,  1839 
May  31,  1S41 
Dec.    4,1843 
Dec.    1,  1845 
Dec,    6,1847 
Dec.  22,  1849 
Dec.    1,  1851 
Dec.    5,  1853 
Feb.    2,  1856 
Dec.    7,1857 
Feb.    1,  186( 
July    4,1861 
Dec.    7,  1863 
Dec.    4,  1865 
Mar.    6,1867 

Mar.   3,1791 
Mar.    2,1793 
Mar.   3,1795 
Mar.   3,1797 
Mar.    3,1799 
Mar.   3,  1801 
Mar.    3,1803 
Mar.    3,1805 
Mar.    3,  1807 
Mar.   3,  1809 
Mar.   3,  1811 
Mar.   3,  1813 
Ian.  19,  1814 
Mar.    2,1815 
Mar.   3,  1817 
Mar.    3,  1819 
Nov.  13,  1820 
Mar.   3,1821 
Mar.   3,  1823 
Mar.    3,  1825 
Mar.   3,1827 
Mar.    3,1829 
Mar.   3,  1831 
Mar.   2,  1833 
June  2,  1834 
Mar.   3,  1835 
Mar.    3,1837 
Mar.   3,  1839 
Mar.    3,  1841 
Mar.   3,1843 
Mar.    3,  1845 
Mar.    3,1847 
Mar.    3,  1849 
Mar.  3,  1851 
Mar.    3,1853 
Mar.    3,1855 
Mar.   3,  1857 
Mar.   3,1859 
Mar.   3,  1861 
Mar.   3,1863 
Mar.   3,1865 
Mar.   8,  1867 

Pennsylvania. 
Connecticut. 
Pennsylvania. 
^e\v  Jersey, 
do. 
Vfassachtisetts. 
N.  Carolina, 
do. 
do. 
Massachusetts. 
do. 
Kentucky, 
do. 
S.  Carolina. 
Kentucky, 
do. 
do. 
New  York. 
Virginia. 
Kentucky. 
New  York. 
Virginia. 
do. 
do. 
do. 
Tennessee. 
do. 
do. 
Virginia. 
Kentucky. 
Virginia. 
Indiana. 
Massachusetts. 
Georgia. 
Kentucky. 

Massachusetts. 
S.  Carolina. 
New  Jersey. 
Pennsylvania. 
Indiana. 
do. 
do. 

Jonathan  Trumbull  
Fred.  A.  Muhler.berg  
Jonathan  Da  vton  

Jonathan  Dayton  
Theodore  Bengwidt  
Nathaniel  Macon  

Nathaniel  Macon  

Nathaniel  Macon 

Joseph  B.  Varnum  

Joseph  1?.  Varnum  .. 
Henry  Clav 

Langdon  Cheves  

Henry  Clay.  .         

Henry  Clay  

John  W.  Taylor 

Philip  P.  Harbour  
Henry  Clay  
John  W.  Taylor 

Andrew  Stevenson  

Andrew  Stevenson 

John  Bell  

James  K.  Polk.           .   . 

James  K.  Polk  
Eobert  M.  T.  Hunter  

John  White  

John  W.  Davis  

Kobert  C.  Winthrop. 

Howell  Cobb 

Linn  Boyd  
Linn  Bovd  

Nathaniel  P  Banks  
James  L.  Orr  

William  Pennington 

Galusha  A.  Grow  
Schuyler  Col  fax  

Scbuyler  Colfax  

Schuyler  Colfax 

The  names  of  Speakers,  pro  fe?«.,who  served  temporarily,  for  one  or 
days,  have  been  omitted.     The  delays  of  elections  in  the  34th  and  36th  Con 
gresses  were  caused  by  political  contests. 

27.  IMPEACHMENT. — "We  must  look  to  the  common  law  for  the  What  is  im- 
definition   of    impeachment.     "William   "Wirt,    Peck's    Trial,    499 ;  peachrnent  ? 
James  Buchanan,    Peck's   Trial,    437,    438.      And  see  1  Chase's 
Trial,    47,    48;    2    Id.    9-18;    4   Elliot's   Debates,    262.        It    is 
designed  as  a  method  of  national   inquest   into   the    conduct   of 
public  men.     Story  on  the  Const.  §  689.    To  exhibit  articles  of  89, 191-194. 
accusation  against   a   public  officer  before  a  competent  tribunal. 
Burrill's    Law    Die.    ^IMPEACHMENT.      It  is   a  presentment    by 


74  IMP'MENT,  SENATE,  27,  28,  29.       [Art.  I.,  Sec.  3, 

the  House  of  Commons,  the  most  solemn  grand  inquest  of  the  whole 

kingdom,  to  the  House  of  Lords,  the  most  high  and  supreme  court 

of  criminal  jurisdiction  of  the  kingdom.     (2  Hale's  PI.  of  Or.  150; 

4  Blacks.  Com.  259;   2  Wilson's  Law.  Lect.  165, 166;   2  Woodeson's 

Lect.  40,  p.  596.)     Story's  Const.  §  688.    The  objects,  openness, 

and    dignity  of    the   proceeding.      (Rawle,    Const.    69,    137,  225, 

236;     2    Elliott's    Debates,    43-46.)      Story's    Const.    §§    688-9. 

Pickering's   Judge  Pickering  was  impeached,  tried,   convicted,   and    removed 

in  his  absence,  and  without  counsel.     His  offense  was,  that  he  was 

deprived  of  reason.     Farrar,  §  169.      The  judgment  was  removal 

193, 194.     from  office.     Story's  Const.  §  803,  note  1.     For  an  enumeration  of 

194        the  impeachable  crimes  at  common  law,  see  2  Woodeson's  Lect.  40, 

p.  202;   Com.  Dig.  L.  28-42;  Story's  Const.  §  799-803. 

now  ami  by     SEC.  III. — [1.1  The  senate  of  the  United  States  shall 

whom  are 

senators       be  composed  ol  two  senators  from  each  state,  chosen 
by  the  legislature  thereof,  for  six  years ;  and  each  sen- 
vote?         ator  shall  have  one  vote. 

What  are         28.  Consider  the  nature  of  the  representation  ;  the  mode  of  ap- 

the  objects?  pointment ;   the  number  of  senators;  their  term  of  service;    and 

their  qualifications.     1  Story's  Const.  §  691.      It  makes  the  States 

Why  two  for  equal  in  the  senate.     This  result  was  obtained  as  a  compromise, 

each  state?    without  which  the  Convention  must  have  been  dissolved.    Curtis' s 

Hist,  of  the  Const.  41,  48,  100,  105,  106;  1  Story's  Const.  §  690- 

700;  2  Pitkin's  Hist.  233,  245.  247,  248;   4  Elliot's  Debates,  74- 

92;  Id.  99-101;    Id.   107,   108,'  112-127;  2  Id.   233,   245;  Luther 

Martin's  Letter  in  4  Elliot's  debates,  1-45.      The  election  by  the 

Why  elected  legislature  was  mainly  to  secure  the  cooperation  of  the  State  with 

bytheLegis-the  federal  government.    (The  Federalist,  JSTos.  27,  62;   1  Kent's 

Com.  Lect.  11,  p.  211.)   Story's  Const.  §  704. 

How  It  was  not  fully  settled  whether  the  elections  should  be  by  joint 

elect8ccl?  or  concurrent  vote,  until  the  act  of  Congress  in  these  notes.  (1 
Rawle's  Const.  37 ;  1  Kent's  Com.  Lect.  11  p.  211,  212.)  The  num 
bers  considered.  1  Story's  Const.  §  706-708;  2  Curtis's  Hist,  of 
Cocst.  passim.  There  was  Hamilton's  opinion  in  favor  of  tenure 

What  was     during  good   behavior.      Curtis's    Hist,  of  the  Const.   100,    105; 

Hamilton'!  Story's  Const.  §  709,  note  2  in  3d  Ed.  The  advantages  of  the 
present  system  and  the  classification  fully  discussed;  Id.  §709-727. 

K fleet  of  two  Practically,  the  fact  that  each  senator  has  one  vote  often  divides 

votes  ?          the  State  upon  questions  of  party  interest. 

What  has  29.  "Where  the  election  is  by  a  joint  convention  of  the  two 
r.ceii  the  houses  of  the  legislature,  it  is  not  necessary  that  there  should  be  a 
concurrent  majority  of  each  house  in  favor  of  the  candidate  de- 
Cameron's  clared  to  be  elected.  Cameron's  Case,  United  States  Senate,  13th 
case.  March,  1857.  The  election,  however,  must  be  substantially  by 

28,  30  both  houses,  as  distinct  bodies.  The  mere  fact  that  a  majority  of 
the  joint  body,  or  even  of  each  body,  is  present,  does  not  constitute 
the  aggregate  body  a  legislature,  unless  the  two  bodies,  acting 
separately,  have  voted  to  meet,  and  have  actually  met  accordingly. 


01.  1.]  SENATOES,    ELECTION"  OF,    30.  75 

Harlan's  Case,  United  States  Senate,  12th  January,  1857;   10  LawHarlan's 
EC  p.  1-6.  case? 

In  the  case  of  John  P.  Stockton,  of  New  Jersey,  in  1866,  it  was  Stockton's 
held  that  where  the  two  bodies  met  in  convention  to  elect  a  senator,  Cll8(i? 
and  no  one  having,  after  numerous  ballots,  received  a  majority  of 
the  votes  cast,  and  the  convention  then  resolved  to  elect  by  plurality, 
and  did  so  elect,  it  was  not  an  election  by  the  legislature,  and  Mr. 
Stockton  was  refused  his  seat.     Senate  Journal,  4th  Dec.,  1865  ; 
8th  Jan.,  30th  Jan.,  and  26th  March,  1866. 

For  the  reasons  which  led  to  an  equal  representation  in  the  sen-  Why  two 
ate,  and  for  a  longer  term  of  service,  see  2  Curtis's  History  of  the  senators? 
Constitution,  p.  138-141,  165,  166,  186,  217.      This  is  one  of  the 
sections  under  which  it  has  been  urged  that  the  right  of  the  sece 
ded  States  to  representation  in  the  senate  is  optional,  absolute,         46. 
and  unqualified.       While  the   precedent   is  that  the   reestablish- 
ment   of    the    representation     depends    upon    the     reestablished        242. 
loyalty  of  the  State,  and  the  ability  of  the  senators  elected  to     275,  279. 
take  the  test  oath. 

3O.  The  mode  of  election  has  now  been  settled  by  the  following 
act: — 

CHAP.  CCKLV.—An  Act  to  regulate  the  Times  and  Manner  of  hold-  July  25.1866, 
•ing  Elections  for  Senators  in  Congress.  14  St» >248- 

Be  it  enacted,  &c.,  1.  That  the  legislature  of  each  State  which  What  logis- 
shall  be  chosen  next  preceding  the  expiration  of  the  time  for  which  j^™8  '^ 
any  senator  was  elected  to  represent  such  State  in  Congress,  shall,  wnen  to 
on  the  second  Tuesday  after  the  meeting  and  organization  thereof,  elect  sena- 
proceed  to  elect  a  senator  in  Congress,  in  the  place  of  such  senator tors  ? 
so  going  out  of  office,  in  the  following  manner:  Each  house  shall  What  is  the 
openly,  by  a  viva  voce  vote  of  each  member  present,  name  one  person  ™t)de  of  elec- 
for  senator  in  Congress  from  said  State,  and  the  name  of  the  person tlou 
so  voted  for,  who  shall  have  a  majority  of  the  whole  number  of 
votes  cast  in  each  house  shall  be  entered  on  the  journal  of  each 
house  by  the  clerk  or  secretary  thereof;  but  if  either  house  shall  fail 
to  give  such  majority  to  any  person  on  said  day,  that  fact  shall  be 
entered  on  the  journal.     At  12  o'clock,  meridian,  of  the  day  fol 
lowing  that  on  which  proceedings  are  required  to  take  place,  as 
aforesaid,  the  members  of  the  two  houses  shall  convene  in  joint 
assembly  and  the  journal  of  each  house  shall  then  be  read,  and  if 
the  same  person  shall  have  received  a  majority  of  all  the  votes  in 
each  house,  such  person  shall  be  declared  duly  elected  senator  to 
represent  said  State  in  the  Congress  of  the  United  States ;  but  if 
the  same  person  shall  not  have  received  a  majority  of  the  votes  in 
each  house,  or  if  either  house  shall  have  failed  to  take  proceedings 
as  required  by  this  act,  the  joint  assembly  shall  then  proceed  to 
choose  by  a  viva  voce  vote  of  each  member  present,  a  person  for 
the  purpose  aforesaid,  and  the  person  having  a  majority  of  all  the 
votes  of  the  said  joint  assembly,  a  majority  of  all  the  members 
elected  to  both  houses  being  present  and  voting,  shall  be  declared 
duly  elected ;  and  if  no  person  shall  receive  such  majority  on  the 
first  day,  the  joint  assembly  shall  meet  at  twelve  o'clock,  meridian, 


76  CLASSIFICATION,    31,    32  33,    34.  [Art.  L,  Sec.  3, 

of  each  succeeding  day  during  the  session  of  the  legislature,  and 
take  at  least  one  vote  until  a  senator  shall  be  elected. 

What  are  tho      2.  Whenever,  on  the  meeting  of  the  legislature  of  any  State,  a 
fo'Socta188  vacancv  sha11  exist  in  the  representation  of  such  State  in  the  Sen- 
senator  to     a*-e  °f  ^'e  United  States,  said  legislature  shall  proceed,  on  the  sec- 
fill  a  ond  Tuesday  after  the  commencement  and  organization  of  its  session, 
vacancy?      ^o  e]ect  a  person  to  fill  such  vacancy,  in  the  manner  herein-before 
provided  for  the  election  of  a  senator  for  a  full  term;  and  if  a 
vacancy  shall  happen  during  the  session  of  the  legislature,  then  on 
the  second  Tuesday  after  the  legislature  shall  have  been  organized 
and  shall  have  notice  of  such  vacancy. 

How  is  the        3.  It  shall  be  the  duty  of  the  governor  of  the  State  from  which 
CCr"  any  senator  shall  have  been  chosen  as  aforesaid  to  certify  his 
election,  under  the  seal  of  the  State,  to  the  President  of  the  Sen 
ate  of  the  United  States,  which  certificate  shall  be  countersigned 
by  the  Secretary  of  State  of  the  State. 

what  is  the  [2.]  Immediately  after  they  shall  be  assembled,  in 
tiofi8?  °a  consequence  of  the  first  election,  they  shall  be  divided, 
as  equally  as  may  be,  into  three  classes.  The  seats  of 
the  senators  of  the  first  class  shall  be  vacated  at  the 
expiration  of  the  second  year,  of  the  second  class  at  the 
expiration  of  the  fourth  year,  and  of  the  third  class  at 
the  expiration  of  the  sixth  year,  so  that  one-third  may 
if  vacancies  be  chosen  every  second  year;  and  if  vacancies  happen 
by  resignation,  or  otherwise,  during  the  recess  of  the 
legislature  of  any  State,  the  executive  thereof  may 
make  temporary  appointments  until  the  next  meeting 
of  the  legislature,  which  shall  then  fill  such  vacancies. 

Is  the  senate  31.  The  senate  is  a  permanent  body ;  its  existence  is  continued 
permanent?  and  perpetual.  Cushing's  Law  of  Legislative  assemblies,  19. 

But  should  a  majority  of  the  States  persistently  refuse  to  elect 
senators,  the  government  would  come  to  an  end.  Cohens  v.  Vir 
ginia,  6  Wh.  264;  5  Cond.  106. 

How  32.  The  seat  of  a  senator  is  vacated  by  a  resignation  addressed 

vacated?        ^o  t^e  executive  of  a  State,  notwithstanding  he  may  have  received 
Bledsoe'a      no  notjce  ^^  hjs  resignation  has  been  accepted.     Bledsoe's  Case, 
Cl.  &  Hall,  869. 

Can  the  cxe-  33.  It  is  not  competent  for  the  executive  of  a  State,  during  the 
cutive  fill  a  recess  of  the  legislature,  to  appoint  a  senator  to  fill  a  vacancy  which 
vacancy1'?*6  w*^  happen,  but  has  not  happened  at  the  time  of  the  appointment. 
Laninan'i  Lanman's  Case,  Cl.  &  Hall,  871. 

liow  is  the  34.  For  a  classification  and  list  of  senators,  see  Hickey's  Consti- 
classifica-  tution,  316-388.  The  classification  is  settled  by  lot  when  tho 
tion settled?  senators  flrst  appear  from  a  new  State,  in  the  mode  adopted  in  tho 


C1.2,  3,4]  SENATORS,  YICE-PEESIDENT,  35,  36.  37.  77 

first  classification,  so  as  to  prevent  two  vacancies  occurring  in  the  For  what 
same  State  at  the  same  time.     (Journals  of  Senate,  15th  May,  1789,  purpose? 
25,  26,  edition  of  1820.)     1  Story's  Const.  §  509.     The  classification 
gives  some  analogy  to  the  principle  of  two  years  tenure  in  the  house  How  many 
of  representatives,  by  the  vacation  of  one-third  of  the  terms  every  senators  ? 
fourth  of  March.     The  whole  number  of  States  being  now  thirty- 
seven,  the  number  of  senators  would  be  seventy  -four  ;  but  ten  States         46. 
not  being  represented  in  the  senate,  there  are  only  fifty-four  senators     275,  279. 

[3.]  ISTo  person  shall  be  a  senator  who  shall  not  have  what  are  the 

„    ,  .  T  T  ••  qualifica- 

attained  to  the  age  of  thirty  years,  and  been  nine  years  tions  of  sen- 
a  citizen  of  the  United  States,  and  who  shall  not,  when 
elected,  be  an  inhabitant  of  that  State  for  which  he 
shall  be  chosen. 

35.  The  term  "PERSON"  here  is  subject  to  the  same  criticism  as  what  is 
to  the  qualifications  of  members  of  the  house,  and  necessarily  cannot  meant  by 
be  as  comprehensive  as  "ALL  OTHER  PERSONS"  in  the  3d  clause  of  Person? 
the  first  section.     See  Farrar's  Criticism,  §  125-141.     Words  must  16,  24,  46. 
receive  their  necessary  signification  and  be  construed  according  to  Is  "senator" 
the  context,  precedent  and  practice.      "SENATOR  "is   sufficiently  Iuasc»»nt 
masculine,  and  is  made  certain  by  "Tie."     See  Gallatin's  Case,  Cl.  &  Ganatin<d 
Hall,  851  ;  Shield's  Case,  who  was  rejected  for  want  of  nine  years'  case? 
naturalization,  "  at  the  commencement  of  the  term  for  which  he  was  Shield's 
elected."      See    Senate  Journal,  from   5th   to   15th  March,  1849. 
Shields  was  re-elected,  and  returned  to  the   senate  at  its  next 
session  —  was  qualified,  and  took  his  seat. 


cas 


93< 


[4.]  The  Vice-President  of  the  United  States  shall  who  is  pros- 
be  President  of  the  Senate,  but  shall  have  no  vote,  6enate  ? 
unless  they  be  equally  divided.  16S  a- 

36.  YI'CE  [prep.],  in  place  of  the  president.     "Webster's  Die. 
YI'CE.     The  reasons  for  this  officer  presiding  discussed.     Story's 
Const.  §  732-741.     The  question  of  the  inherent  powers  of  the  What  are  the 
vice-president  is  still  open,  it  having  been  ruled  in  1826,  that  he  is  j|^t"^re^"w. 
without  power,  as  presiding  officer,  except  as  it  is  given  by  the  e^?  s 
rules  of  the  senate.     Story's  Const.,  §  739;   1  American  Annual         3Si 
Register,  86,  87  ;  3  Id.  99  ;  4  Elliot's  Debates,  311-315.    By  a  rule 
of  1828,  "every  question  of  order  shall  be  decided  by  the  president 
without  debate,  subject  to  appeal  to  the  senate."     3  Annual  Reg. 
99  ;  Story's  Const,  §  740  ;  3  Jefferson's  Manual,  15,  17. 

37".  The  following  have  been  the  vice-presidents  :  John  Adams,  Name  the 
from  4  March  1789  to  3  March  1797  ;  Thos.  Jefferson,  from  4  March  vice-presi- 
1797  to  3  March  1801  ;  Aaron  Burr,  from  4  March  1801  to  3  March  S'te^L 
1805;  George  Clinton,  from  4  March  1805  to  3  March  1813;    El-  Of  office? 
bridge  Gerry,  from  4  March   1813   to  3  March  1817;    Daniel  D. 
Tompkins,  from  4  March  1817  to  3  March  1825;  John  C.  Calhoun, 


78  VICE-PRESIDENT,    &C.,    37,    38.    [Art.  L,  Sec.  3, 

from  4  March  1825  to  3  March  1833;  Martin  Yan  Buren,  from  4 
March  1833  to  3  March  1837;  Richard  M.  Johnson,  from  4  March 
1837  to  3  March  1841;  John  Tyler,  from  4  March  1841  to  6  April 
1841;  George  M.  Dallas,  from  4  March  1845  to  3  March  1849;  Mil- 
lard  Fillmore,  from  4  March  1849  to  10  July  1850  ;  William  R.  King 
was  elected  in  1852  and  was  sworn  as  vice-president  in  1853,  iu 
the  island  of  Cuba,  in  accordance  with  act  of  3d  March,  1853.  He 
died  in  Cuba,  having  never  presided.  John  C.  Breckinridge,  from 
4  March  1857  to  3  March  1861;  Hannibal  Hamlin,  from  4  March 
1861  to  3  March  1865;  Andrew  Johnson,  from  4  March  1865  to  14 
April  1865,  when  he  was  sworn  as  president  in  consequence  of  the 
assassination  of  Abraham  Lincoln. 

what  officers    [5.]  The  senate  shall  choose  their  other  officers,  and 

do  the  senate    ,  .,  .    >'•  ,'iv;.  ,,     . 

choose?       also  a  president  pro  tempore,  in  the  absence  of  the 
vice-president,  or  when  he  shall  exercise  the  office  of 
36'       President  of  the  United  States. 

When  does        &8.  This  presiding-officer,  under  an  act  of  Congress,  becomes  the 

officPereSbenS  President  of  the  TJnited  States,  in  case  of  the  death  or  disability  of 

comer  presi-  the  president  and  vice-president.     1  St.  §  9,  p.  240  ;  Brightly's  Dig. 

dent?  253.     Pro  tempore  means  for  the  time.     But  the  law  and  practice 

172«          is  to  elect   a   permanent   presiding   officer,  who  acts  during  the 

168  a.      absence  of  the  vice-president,  and  when  the  vice-president  becomes 

26-        President  of  the  United  States.     The  following  is  a  list  of  these 

presiding  officers,  or  presidents  pro  tempore  :  — 

JSamo  the     Names  of  Presidents  pro  tern-        ...     -,  , 


John  Langdon  ..........   6  April  1789  ..........  21  April  1789 

John  Langdon  ...........   7  Aug.  1789  ..........  19  Aug.  1789 

Richard  Henry  Lee  ......  18  April  1792  ..........  8  May    1792 

John  Langdon  ...........   5  Nov.   1792  ..........  4  Dec.    1792 

John  Langdon  ...........   1  Mar.    1793   .........   3  Mar.   1793 

John  Langdon  ...........  4  Mar.    1793  ..........  4  Mar.   1793 

Ralph  Izard  .............  31  May    1794  ..........   9  June  1794 

Ralph  Izard  .............   3  Nov.   1  794  ..........  9  Nov.  179  1 

Henry  Taze  well  .........  20  Feb.    1795  ..........  3  Mar.    1795 

Henry  Tazewell  .........   7  Dec.    1795   .........   8  Dec.    1795 

Samuel  Li  vermo  re  ........   6  May    1796  ..........   1  June  1796 

William  Bingham  ........  16  Feb.    1797  ..........   3  Mar.    1797 

William  Bradford  ........   6  July    1797  ..........  10  July    1797 

Jacob  Read  .............  22  Nov.   1797  ..........  12  Dec.    1797 

Theodore  Sedgwick  ......  27  June   1798  ..........  1G  July    1798 

Theodore  Sedgwick  ......  17  July    1798  ..........  17  July   1798 

John  Lawrence  ..........   6  Dec.    1798  ..........  26  Dec.    1798 

James  Ross  .............    1  Mar.    1799  ..........   3  Mar.    1  T'J9 

Samuel  Livermore  ........   2  Dec.    1799  .........  29  Dec.    1799 

Uriah  Tracy  ............  14  May    1  800  ..........  14  May    1  800 

John  Eager  Howard  .....  21  Nov.   1800  ..........  27  Nov.   1800 

James  Hillhouse  .........  28  Feb.    1801..  .  3  Mar.  1801 


01.  5.]  PRESIDING  OFFICERS,    38.  79 

Names  of  Presidents  pro  tern-      Atiended,  RdM 

pore  of  the  Senate. 

Abraham  Baldwin 7  Dec.    1801 14  Jan.    1802 

Abraham  Baldwin 17  April  1802 3  May    1 802 

Stephen  R.  Bradley 14  Dec     1802 18  Jan.    1803 

Stephen  R.  Bradley 25  Feb.    1803 25  Feb.    1803 

Stephen  R.  Bradley 2  Mar.    1803 3  Mar.   1803 

John  Brown 17  Oct.     1803 6  Dec.    1803 

John  Brown 23  Jan;    1804 9  Mar.   1804 

Jesse  Franklin     10  Mar.    1804 27  Mar.   1804 

Joseph  Anderson 15  Jan.    1805. 

Joseph  Anderson 28  Feb.    1805 2  Mar.    1 805 

Joseph  Anderson 2  Mar.  1805 3  Mar.   1805 

Samuel  Smith 2  Dec.   1805 15  Dec.    1805 

Samuel  Smith 18  Mar.    1806 21  April  1806 

Samuel  Smith 2  Mar.   1807 3  Mar.   1807 

Samuel  Smith 16  April  1808 25  April  1808 

Stephen  R.  Bradley 28  Dec.    1808   

John  Milledge 30  Jan.    1809 3  Mar.   1809 

John  Milledge 4  Mar.    1809 7  Mar.   1809 

Andrew  Gregg 26  June   1809 28  June   1809 

Andrew  Gregg 27  Nov.  1809 18  Dec.    1809 

John  G-aillard 28  Feb.   1810 

John  Gaillard 17  April  1810 1  May    1810 

JohnGaillard . .  3  Dec.    1810 11  Dec.    1810 

John  Pope 23  Feb.    1811 3  Mar.  1811 

William  H.Crawford 24  Mar.   1812 6  July   1812 

William  H.Crawford 2  Nov.    1812 3  Mar.    1813 

Joseph  B.  Yarnum 6  Dec.    1813 3  Feb.    1814 

JohnGaillard 18  April  1814 18  April  1814 

JohnGaillard 19  Sept.   1814 2  Mar.    1815 

JohnGaillard 4  Dec.    1815 30  April  1815 

JohnGaillard 2  Dec.    1816 3  Mar.    1817 

JohnGaillard 4  Mar.    1817 6  Mar.    1817 

JohnGaillard 1  Dec.    1817 18  Feb.    1818 

JohnGaillard 31  Mar.    1818 20  April  1818 

JohnGaillard 16  Nov.  1818 5  Jan.    1819 

James  Barbour 15  Feb.    1819 3  Mar.  1819 

James  Barbour 6  Dec.    1819 26  Dec.  1819 

JohnGaillard 25  Jan.    1820 15  May  1820 

JohnGaillard 13  Nov.  1820 3  Mar.  1821 

JohnGaillard 3  Dec.    1821 27  Dec.  1821 

John  Gaillard 1  Feb.    1822 8  May  1822 

JohnGaillard 2  Dec.  1822 2  Dec.  1822 

JohnGaillard 19  Feb.  1823 3  Mar.  1823 

John  Gaillard 1  Dec.   1823 20  Jan.  1824 

Jonn  Gaillard 21  May  1824 27  May  1824 

John  Gaillard 6  Dec.  1824 3  Mar.  1825 

John  Gaillard 9  Mar.   1825 9  Mar.  1825 

Nathaniel  Macon     20  May  1826 20  Mar.  1825 

Nathaniel  Mucon 2  Jan.   1827 13  Feb.   1827 

Nathaniel  Macou  ..  .2  Mar.  1827..  .  3  Mar.  1827 


80  PRESIDING  OFFICERS,    38.        [Art.  I.,  Sec.  3. 


Samuel  Smith   ...........  15  May  1828  ..........  26  May  1828 

Samuel  Smith  ...........   1  Dec.   1S28  ..........  21  Dec.  1828 

Samuel  Smith  ............  13  Mar.  1829  .........  17  Mar.  1829 

Samuel  Smith  ...........   7  Dec.  182.9,  ..........  13  Dec.  1829 

Samuel  Smith  ............  29  May  1830  ..........  31  May  1830 

Samuel  Smith  ............  C  Dec,  1830  ..........  2   Jan.   1831 

Samuel  Smith  ...........   1  Mar.  1831  ..........   3  Mar.  1831 

SamuelSmith  ............   5  Dec.  1831  ..........  11  Dec.  1831 

Littleton  W.  Tazewell  ____   9  July  1832  ..........  16  July  1832 

Hugh  Lawson  "White  .....  3  Dec.  1832  ..........   2  Mar.  1833 

Hugh  Lawson  White  .....   2  Dec.  1833  ..........  15  Dec.   1  833 

George  Poindexter  .......  28  June  1834  ..........  30  June  JS34 

John  Tyler  ..............  3  Mar.  1835  ..........  3  Mar.  1835 

William  R.  King  .........   1  July  1836  ..........  4  July  1836 

William  R.  King  .........  28  Jan.   1837  ..........   3  Mar.   1837 

William  R.King  ........     7  Mar.  1837  ..........  10  Mar.  1837 

William  R.  King  .........  13  Sept.  1837  ..........  12  Sept.  1837 

William  R.  King  .........   2  July  1838  ..........  16  Oct.    1837 

William  R.  King  .........   3  Dec.  1838  ..........  18  Dec.   1838 

William  R.  King  .........  25  Feb.  1839.    ........  3  Mar.  1839 

William  R.  King  .........   2  Dec.  1839  .......    ..26  Dec.  1839 

William  R  King  .........  3  July  1840  ..........  21  July  1840 

William  R.  King  .........   7  Dec.  1840  ..........  15  Dec.  1840 

William  R.  King  .........   2  Mar.  1841  ..........   3  Mar.  1841 

William  R.  King  .........  4  Mar.  1841  ..........  4  Mar.  1841 

Samuel  L.  Southard  ......  11  Mar.  1841  ..........  15  Mar.  1841 

Samuel  L.  Southard  ......  31  May  1841  ..........  13  Sept.  1841 

Samuel  L.  Southard  ......   6  Dec.  1841  ..........  30  May  1842 

Willie  P.Mangum  ........  31  May  1842  ..........  31   Aug.  1842 

Willie  P.  Mangum  ........   5  Dec.  1842  ..........  3  Mar.  1843 

Willie  P.  Mangum  ........  4  Dec.   1843  ..........  17  June  1844 

Willie  P.  Mangum  ........   2  Dec.  1844  ..........  3  Mar.  1845 

Willie  P.  Mangum  .......  4  Mar.  1845  ..........  4  Mar.  1845 

David  R.  Atchison  ........  8  Aug.  1846  ..........  10  Aug.  1846 

David  R.Atchison  ........  11  Jan.  1847  .........   14  Jan.    1847 

David  R.  Atchison  ........  3  Mar.  1847  ..........  3  Mar.  1847 

David  R.  Atchison  ........   2  Feb.  1848  ..........   8  Feb.  1848 

David  R.  Atchison  ........   1  June  1  848  ..........  14  June  1848 

David  R.Atchison  .......  26  June  1848  ..........  29  June  1848 

Dav  id  R.Atchison  .......  29  July  1848  ..........  14  Aug.  1848 

David  R.Atchison  .......  4  Dec.   1848  ..........  4  Dec.  1848 

David  R.Atchison  ........  26  Dec.  1848  ..........   1  Jan.   1849 

David  R.  Atchison  ........  2  Mar.  1849.  .  .  .......   3  Mar.  1849 

David  R.  Atchison  ........  5  Mar.  1849  ..........  23  Mar.  1849 

William  R.King  .........   6  May  1850  ..........  19  May  1850 

William  R.King  ........  11  July  1850  ..........  30  Sept.  1850 

William  R.King  .........  2  Dec.  1850  ..........  3  Mar.  1851 

William  R.King  .........   1  Dec.  1851  ..........  31  Aug.  1852 

William  R.  King  .........   1  Dec.   1852  ..........  20  Dec.  1852 

David  R.Atchison..         ..20  Dec.  1852  ..........  3  Mar.  1853 


01.  5,  6.]  IMPEACHMENTS,    38,  39.  81 


David  R.  Atchison  ........   5  Dec.   1853  ..........   7  Aug.  1854 

Jesse  D.  Bright  ..........   4  Dec.   1854  ..........   3  Mar.  1855 

Jesse  D.  Bright  ..........   3  Dec.  1855  .  .........   8  Aug.  1856 

Jesse  D.  Bright  ..........  21   Aug.  1856  ..........  30  Aug.  1856 

Jesse  D.  Bright  ..........   2  Dec.  1856  ..........   5  Jan.  1857 

James  M.  Mason  ..........   5  Jan.  1857  ..........   3  Mar.  1857 

Benjamin  Fitzpatrick  ......  29  Mar.  1858  ..........  4  May    1858 

Benjamin  Fitzpatrick  ......  24  Jan.  1859  ..........  10  Feb.  1859 

Solomon  Foote  ...........  18  July  18G1  ..........   6  Aug.  1861 

Solomon  Foote  ...........  31  Mar.  1862  ..........  21  May   1862 

Solomon  Foote  ...........  20  June  1862  ..........  17  July  1862 

Solomon  Foote  ...........  18  Feb.    1863  ..........   4  Mar.  1863 

Daniel  Clark  .............  25  April  18G4  ..........  4  July  1864 

Daniel  Clark  .............   9  Feb.    1865  ..........  19  Feb.  1865 

La  Fayette  S.  Foster  .....    7  Mar.   1866  ..........  28  July  1866 

La  Fayette  S.  Foster  .....  13  Dec.    1  867  ..........   3  Mar.  1867 

Benjamin  F.  Wade  .......  4  Mar.    1867  .......... 

[6.]  The  senate  shall  have  the  sole  power  to  try  all  HOW  are  im- 

i  TTT-L  •    .L-          r>        ±1  .L-L         peachuienta 

impeachments.      When  sitting  ior  that  purpose,  they  tried? 
shall  be  on  oath  or  affirmation.     When  the  President 
of  the  United  States  is  tried,  the  Chief-Justice  shall 
preside  ;  and  no  person  shall  be  convicted  without  the 
concurrence  of  two-thirds  of  the  members  present.       TWO  thirds? 

39.  For  the  doctrine  of  impeachment,  see  Peck's  Trial,  speeches  27,  191-194. 
for  the  prosecution  and  defence  ;  Reports  and  Debates  on  the  Im 
peachment  of  the  President,  December,  1867.     A  judgment  of  im 
peachment  in  the  English  House  of  Lords  requires  that  at  least 
twelve  of  the  members  should  concur  in  it;  and  "a  verdict  by 
less  than  twelve  would  not  be  good."      Com.  Dig.  Parliament.  L. 
17.     The  reasons  why  this  power  of  impeachment  was  given  to 
the  senate  are  fully  discussed  in  the  Federalist,  and  in  Story  on  the  36,  37. 
Const.,  and  Rawle  on  the  Const.     Story's  Const,  §  743-775,  and 
notes.     The  interest  of  the  vice-president  is  supposed  to  disqualify  Whore  are 
him.     Story's  Const.,  §  777.     For  the  action  of  the  senate   upon  the  impwich- 
impeachment  see  the  journal  or  record  of  the  senate  on  trials  °f  to"be  found  ? 
impeachment,  from  March  4,  1780,  to  March  3,  1851:   1.  On  the 
trial  of  William   Blount,  a  senator  of   the  United  States,   from 
December  17,  1798,  to  January  15,  1799;  2.  On  the  trial  of  John 
Pickering,  Judge  of  the  New  Hampshire  District,  from  March  3, 
1803,  to  March  12,  1803;  3.  On  the  trial  of  Samuel  Chase,  one  of 
the  Associate  Justices  of  the  Supreme  Court  of  the  United  States, 
from  November  30,  1804,  to  March  1,  1805.     The  preceding  cases 
will  bo  found  as  an   appendix  to  the  third  volume  of  the  Legisla 
tive  Journal  of  the  Senate  ;    4.  On  the  trial  of  James   H.  Peck, 
Judge   of  the  Missouri  District,  from  May  11,   1830,  to  May  25, 
1830  ;  and  from  December,  13,   1830,  to  January  31,  1831.     The 


82  IMPEACHMENT,    39,   40.      [Art.  I,  Sec.  3,  4. 

proceedings  in  this  case  will  be  found  as  an  appendix  to  the  Legis 
lative  Journal  of  the  Senate  of  1830,  1831,  and  also  in  volumes 
called  Peck's  Trial,  Blount's  Trial,  Pickering's  Trial,  and  Chase's 

«7, 191, 194.  Trial.  For  the  mode  of  trial  in  cases  of  impeachment,  see  Story's 
Const,  §  807-810;  2  Woodeson's  Lect.,  40,  p.  603,  604;  Jeffer 
son's  Manual,  §  53. 

What  is  the  The  form  of  oath  adopted  by  the  Senate  in  Chase's  case  was  as 
^°^ows  •  "  ^ou  solemnly  swear  or  affirm,  that  in  all  things  apper 
taining  to  the  trial  of  the  impeachment  of  — — ,  you  will  do 
impartial  justice  according  to  the  Constitution  and  laws  of  the 
United  States."  (Chase's  Trial,  vol.  1,  p.  12.)  Report  upon  the 
impeachment  of  the  President,  62. 

is  the       The  question  in  Pickering's  Case  was  :  "Is  John  Pickering,  dis 
trict  judge  of  the  district  of  New  Hampshire,  guilty  as  charged  in 

the article  of  the  impeachment  exhibited  against  him  by  the 

House  of  Representatives  ?"    Annals  2d  Session  8th  Cong.  364.  In 

Chase's  trial  it  was  :  "Mr. ,  how  say  you;  is  the  respondent, 

Samuel  Chase,  guilty  or  not  guilty  of  a  high  crime  or  misdemeanor, 
as  charged  in  the  article  of  impeachment?"  Ibid  2d  Session  8th 
Congress,  564.) 

What  is  the      [7.]  Judgment  in  cases  of  impeachment  shall  not 
impeach-     extend  further  than   to  removal  from  office,  and  dis- 

ment  ?  .  ,       '  " 

qualification  to  hold  or  enjoy  any  office  of  honor,  trust, 
or  profit,  under  the  United  States ;  but  the  party  con 
victed  shall  nevertheless  be  liable  and  subject  to  indict 
ment,  trial,  judgment,  and  punishment,  according  to 
law. 

What  means     4O.  JUDGMENT  here  means   the  conclusion  of   law  from  the 

judgment?    facts  found  upon  the  charges  preferred  by  the  House.    In  the  trial 

274?9'       °^  Judge  Peck  for  having  disbarred  a  lawyer,  the  defence  was 

191  194      mamly  rested  upon  the  right  of  the  court  to  punish  for  contempt, 

and  the  want  of  malice  in  the  judge.  Peck's  Trial.  Some  have 
Can  tho  questioned  whether  if  the  defendant  be  found  guilty,  the  judgment 
judgment  be  can  be  less  than  removal  from  office.  Story's  Const.  803.  Shall  not 
mov-il?f  re~  extend  further,  does  not  mean  shall  not  exceed  or  fall  short,  but  be 

exactly  removal  and  disqualification,  and  nothing  else.     Farrar,  p. 

434.,  note  1. 

In  England  the  punishment  extends  to  the   whole  punishment 

attached  by  law  to  the  offense.     (Comyn's  Dig.  Parliament,  L.  4 1 ; 

2   Woodeson.  Lect,  40.  p.  611-614),  Story's  Const.,  §  784.     Tho 

sentence  is  limited  to  political  punishment,  and  the  party  left  to  a 

trial  for  the  criminal  violation  of  the  law  by  a  jury.     Story's  Const. 

§786. 
How  far  does      DISQUALIFICATION. — The  punishment  touches  neither  his  person 

nor  property ;  but  simply  divests   him  of  his    political  capacity. 

Mr.   Bayard,  Blount's  trial,  47-68,  Phila.,  1799.     Id.  82.     Slory's 

Const.,  §  803. 


01.  6,  7,  1,  2.]  ELECTIONS,   41.  83 

SEC.  4.  [1.]  The  times,  places,  and  manner  of  hold-  who  pr». 
ing  elections  for  senators  and  representatives,  shall  be  SmJjlnd8 
prescribed  in  each  State  by  the  legislature  thereof;  but  Section's? 
the  Congress  may  at  any  time  by  law  make  or  alter        IT 
such  regulations,  except  as  to  the  places  of  choosing        13 
senators. 

41 .  When  the  legislature  of  a  State  has  failed  to  "  prescribe  the  What  is  the 
times,  places,  and  manner"  of  holding  elections,  as   required  bypoweroftfce 
the  Constitution,  the  governor  may,  in  case  of  a  vacancy,  in  hisgovernor? 
writ  of  election,  give  notice  of  the  time  and  place  of  election ;  but 
a  reasonable  time  ought  to  be  allowed  for  the  promulgation  of  the 
notice      Efoge's  Case,  Cl.  &  Hall,  135. 

This  power  of  Congress  has  only  been  exercised  so  far  as  to  HOW  far  hns 
require  the  States  to  elect  by  districts,  by  the  act  of  1842,  ch.  47.  this  power 
(See  Barnard's  Protest,  in  December,  1843,  and  the  debates  of  that  J^0"^8* 
session,)  and  the  election  of  Senators  already  referred  to.     These  cised? 
acts  re  ate  to  the  manner  of  elections,  and  the  places  so  far  as  the         80 
legislative  halls  are  concerned  in  the  election  of  senators.     There 
are  those  who  contend  that,  under  this  power,  the  general  powers,  274, 275. 
and  the  thirteenth  and  fourteenth  amendments,  and  the  general  What  is 
frame-work  of  the  government,  Congress  may  determine  who  shall  ™eant  by 
vote  at  the  elections   for  representatives;  but  whatever  may  be  and  manner  ? 
said  of  other  powers,  the  more  settled   opinion  seems  to  be,  that 
the  times  relate  to  the  days,  the  places  to  the  precincts  for  voting,  274-279. 
and  the  manner  to  the  viva  voce  or  ballot  system,  and  the  regula- 16-18. 
tions  for  conducting  the  elections. 

When  Congress  ..legislates  on  these  points,  the  legislative  "  regu-  what  is  the 
lations"  (which  relate   back   to   those   three    things)  will   cease,  power  of 
Congress  only  has  a  superintending  control.     1  Story's  Const.  §  Jj^JjJf 
815-828.     It  cannot  be  said,  with  any  correctness,  that  Congress  subject ? 
can,  in  any  way,  alter  the  rights  or  qualifications  of  voters.     1 
Story's  Const.,  §  820.     But  it  was  argued  differently  by  those  who  17^  is. 
opposed  the  ratification  of  the  Constitution.     Little  was  said  in 
the  Conventions.,  The  Federalist,  Nos.  59,  60  ;   1  Elliot's  Debates, 
45-44,  67  68 ;  3  Id.  65,     The  Editor  would  say  that  the  practice  ot 
the   States  as  to   inappropriate  times,  the  vacancies  which  exist 
when  sessions  are  called,  and  the  experience  in  regard  to  secession 
and  rebellion  render  expedient  that  Congress  should  fix  upon  some 
rule  of  uniformity. 

As  to  the  place  of  "  choosing  senators."     This  means  that  Con-         80 
gress  shall  not  say  where  the  legislature  shall  sit.     Stop's  Const., 
|  828,  note  2.     The  arguments  of  those  who  contend  for  the  power  17,  18. 
of  Congress  to  determine  who  may  vote,  and  who  shall  not  be  dis 
franchised,  have  been  presented  by  Mr.  Farrar,  §  124-141.     It  is 
now  one  of  the  irritating  questions. — ED. 

[2.]  The  Congress  sh:ill  assemble  at  least  once  in  what  are 

.  i     11     i  ^1        j±      A.  the  Sessions 

every  year :  and  such  meeting   shall  be  on   the  nrst  Of  Congress? 


84  SESSIONS-QUALIFICATIONS,  42,  46.  [Art.  I.,  Sec.  5, 

Monday  in  December,  unless  they  shall  by  law  appoint 
a  different  day. 

When  42.  The  constitutional  term  of  Congress  does  not  expire  until 

expire  ?        twelve  o'clock  at  noon  on  the  4th  of  March.     11  Stat.  Appendix  ii. 

Act  of  22  43.  "  In  addition  to  the  present  regular  times  of  the  meeting  of 
Jan.,  1907.  Congress,  there  shall  be  a  meeting  of  the  Fortieth  Congress  of  the 
St.  3 48.  United  States,  and  of  each  succeeding  Congress  thereafter,  at 
When  are  12  o'clock  meridian,  on  the  fourth  day  of  March,  the  day  on  which 
the  tinies  of  foe  term  begins  for  which  the  Congress  is  elected,  except  that 
meetings  when  the  fourth  of  March  occurs  on  Sunday,  then  the  meeting 

shall  take  place  at  the  same  hour  on  the  next  succeeding  day." 
When  and         So  that  each  Congress  is  now  divided  into  three  sessions :     The 
for  how         grst  commences  on  the  fourth  day  of  March,  and  may  continue 
its  session  until  the  first  Monday  in  December ;  the  second  com 
mences  on  the  first  Monday  in  December,  and  may  continue  until 
•  the  next  lirst  Monday  in  December ;  the  third  commences  on  the 

first  Monday  in  December,  and  must  adjourn  on  the  next  fourth 
day  of  March,  by  the  dissolution  of  the  Congress. 

What  are         SEC.  V. — [1.1  Each  house  shall  be  the  judge  of  the 

the  powers       .  .,  ..»        .  .,  . 

of  each  elections,  returns,  and  qualifications  of  its  own  mem 
bers  ;  and  a  majority  of  each  shall  constitute  a  quorum 
to  do  business ;  but  a  smaller  number  may  adjourn 
from  day  to  day, and  maybe  authorized  to  compel  the 
attendance  of  absent  members,  in  such  manner,  and 
under  such  penalties,  as  each  house  may  provide. 

What  arc          44.  THE  ELECTIONS  in  a  general  sense,  means  tho  right  to  deter- 

clection   re-  mine  who  has  been  chosen  by  the  "  qualified  electors  "    at   the 

q'ualffica-       "times  and  places"  and  returned,  according  to  "the  regulations" 

tions  ?          prescribed  by  the  laws  of  the  States  or  by  Congress  wherein  they 

16-18,  29, 30,  shall  have  been  superseded.     Each  case  usually  depends  upon  its 

own  facts;    and  the  object  generally  has  been  to  ascercain  who 

has  received  the  highest  number  of  lawful  votes.     The  necessity 

and  importance  of  this  power  discussed.     Story's  Const.  §  833. 

The  returns?  45.  THE  RETURNS  from  the  State  authorities  are  prima  facie  evi 
dence  only  of  an  election,  and.  are  not  conclusive  upon  the  house. 
Spaulding  v.  Mead,  Cl.  &  Hall,  16,  18,  29,  30,  41,  157;  Reed  v. 
Cosden,  Id.  353.  And  the  refusal  of  the  executive  of  a  State  to  grant 
a  certificate  of  election,  does  not  prejudice  the  right  of  one  who 
may  be  entitled  to  a  seat.  Richard's  Case.  Id.  95. 

What  of  tho     46.  The  "QUALIFICATIONS,"  in  its  narrower  sense,  would  doubt- 

quoUflca-      iegg  reiate  to  the  age,  citizenship,  and  inhabitancy  of  the  applicant 

19°  41  35       as  Defined  m  the  second  clause  of  section  2,  art.  1,  and  the  third 

'     '     '      clause  of  section  three  of  the  same.     But  as  the  term  "  PERSON,"  if 

taken  alone,  in  both  might  include  a  female,  a  lunatic  or  an  idiot,  a 

convicted  felon,  a  person  of  notoriously  bad  character,  or  actually 


Cl.  1.]  QUALIFICATIONS,    46.  85 

at  war  with  the  United  States,  as  during   the   rebellion,  or  one 
coming  from  a  State  all  of  whose  inhabitants  are  at  war  with 
the    United    States,    the   term    "qualifications"   has,   in   practice,  275,  279. 
received  a  more  enlarged  signification.     Thus   in  the  case  of  Mr. 
Niles,  in  1846,  a  committee  was  raised,  in  the  senate,  to  inquire 
into  his  mental  capacity;  the  rebellion  has  caused  a  test  oath, 
which  might  reach  persons  in  all  the  States,  and  does  embrace        242. 
majorities  in  some  of  them;  a  concurrent  resolution  was  passed         70. 
in  1866,  in   regard  to  the  States  lately  in  rebellion,  which,  it  was 
urged,  limited  this  independent  power  of  each  house ;  the  four 
teenth  amendment  of  the  Constitution  looks  to  a  new  disqualified-  275-279. 
tion,  and  all  the  reconstruction  acts,  it  has  been  argued,  intrench 
upon  this  right.     At  the   time  of  this  writing  one  committee  is 
investigating  the  subject  of  the  disqualifications  of  certain  mem 
bers  from   Kentucky,   and  another  the    question  as  to  whether 
Maryland  has  a   u republican  form  of   government"  within  the        233. 
meaning  of  the  Constitution. 

It  may  be  pretty  strongly  inferred  from  messages  and  speeches 
of  President  JOHNSON,  and  certainly  it  has  been  very  clearly 
expressed  by  some  of  the  opposition  statesmen  in  the  senate  and 
house,  that  after  the  acts  of  reconstruction,  that  is,  the  formation 
of  amended  constitutions  and  elections  under  the  proclamations  of 
the  President,  the  "persons"  so  chosen  were  entitled  to  their  seats 
without  any  superadded  '•  qualifications"  to  those  prescribed  in  this  277-279. 
section,  except  the  fact  that  they  are  "  loyal  men  from  loyal 
States.1' 

But  the  statesmen  of  the  majority  argue,  that  while  these  States 
and  these  very  members  elected  and  returned,  and  the  great  bodies 
of  their  constituents  were  claiming   to  be   aliens  to  the  United 
States,  and  magistrates  and  people  were  engaged  in  war  to  resist 
the  authority  of  the  government,  they  were  not  entitled  to  repre 
sentation;    and  a  fortiori  they  cannot   send   members   with   the 
proper  " qualifications "  until  the  law-making  power  shall  determine        233. 
upon  the  terms  of  restoration;  and  that,  certainly,  the  test  oath  is 
a  superadded  disqualification,  which  the  president's  pardon  cannot        242. 
overcome.    On  the  other  hand,  it  has  been  argued  that,  as  that  oath        177. 
has  been  decided  to  be  unconstitutional  in  some  cases,  it  is  so  as  to  142, 143. 
members  who  are  willing  to  swear  to  support  the  Constitution ;  that        242. 
the  president's  pardon  does  remove  all  political  disabilities;   and 
therefore,  the  test  oath  cannot  apply  to  those  who  had  been  par 
doned  for  their  participation  in  the  rebellion ;  and  that  the  action 
of  the  people,  under  the  authority  of  the  president,  restores  those 
btates  and  the  c.itizens  thereof,  to  all  their  rights,  in  statu  quo  ante 
bdlum.     These  are  the  general  arguments,  for  and  against.     The 
whole  subject  is  a  case  not  discussed  in  the  formation  of  the  Con 
stitution;  it  is  without  precedent,  because  the  frame-work  of  our 
government  differs  from  all  others ;  therefore,  the  difficult  problem  275-2S5. 
must  be  worked  out  under  its  peculiar  circumstances. 

It  is  not  within  the  plan  of  this  work  to  give  the  opinions  of  the 
Editor.  It  may  not  be  improper  to  remark,  however,  that  there 
seems  to  be  more  difference  as  to  who  shall  accomplish  the  work  of 
restoration  than  what  shall  be  done  to  accomplish  it.  All  seem  to 


86  QUALIFICATIONS— CONTEMPTS,  46-48.  [Art.  L,  Sec.  5, 

• 

agree  that  there  was  a  time  when  the  seceded  States  could  not 
properly  send  members,  even  though  such  members  possessed  the 
constitutional  qualifications ;  yet  upon  this  the  Constitution  is  silent. 
So  the  words  dishyalty  and  loyatty  are  not  in  it.  Necessity  had  to 
determine  that  those  at  war  with  the  government  could  not  vote  on 
the  question  of  supplies.  But  the  time  when,  the  power  which,  and 
the  questions  ho>u  and  to  whom  political  rights  shall  be  restored  or 
given,  and  indeed  how  far  they  are  lost,  are  the  matters  of  differ 
ence.  Of  course  the  actors  in  the  drama,  who  believe  that  the 
ordinances  of  secession  made  the  seceding  States  foreign  and  inde 
pendent  nations,  and  all  the  citizens  who  remained  therein  aliens, 
209.  and  during  the  war  alien  enemies;  that  the  "Confederate  States  " 
became  a  lawful  belligerent  power,  which  was  only  forced  "to  yield 
to  superior  numbers  and  means,"  have  a  kind  of  estoppel  in  limint, 
for  which  there  is  no  other  answer  than  that  the  friends  of  the 
United  States  held  and  have  established  the  opposite  theory. 

The  great  misfortune  in  this  and  all  political  controversies  is, 
that  in  discussions  men  neither  weigh  well  nor  define  their  words. 

I  can  only  pray  that,  in  future  editions,  facts  and  precedents  may 
enable  the  Editor  to  give  the  exact  signification  of  terms. 

Whatarethe      [2.]  Each  house  may  determine  the  rules  of  its  pro- 
powers  Of  ,  .  .     ,  ,  /•  -I  •  1         1        1       1  • 

each  house?  ceedings,  punish  its  members  lor  disorderly  behavior, 
and,  with  the  concurrence  of  two-thirds,  expel  a 
member. 

Where  are  47.  The  "  RULES "  will  be  found  in  "Jefferson's  Manual,"  and 
^°  *n  tne  published  manuals  of  each  house.  See  Barclay's  Digest ; 
the  standing  rules  printed  by  Francis  Childs,  in  1795;  Jefferson'3 
Manual;  Dwarris  on  Statutes,  291;  Hastel's  Precedents;  May's 
Treatise  upon  the  Law,  &o.,  of  Parliament ;  Cushing's  Rules  of 
Proceeding,  Debate,  &c.  All  these  works  should  be  carefully 
studied  by  leading  and  efficient  members  of  Parliamentary  bodies. 
1  Kent's  Com.  238,  and  notes  to  llth  edition,  where  will  be  found 
an  epitome  of  the  rules. 

What  is  the  48.  This  does  not  exclude  the  power  to  punish  for  contempts 
0  °^iers  tnan  raemDers  of  the  house.  The  Constitution  says  nothing 
of  contempts.  These  were  left  to  the  operation  of  the  common  law 
principle,  that  all  courts  have  a  right  to  protect  themselves  from 
insult  and  contempt,  without  which  right  of  self-protection,  they 
could  not  discharge  their  high  and  important  duties.  Nugent's 
Case.  1  Am.  L.  J.  139;  Anderson  v.  Dunn,  6  Wh.  204;  1  Story's 
Const.  §§  845-9 ;  Bolton  v.  Martin,  1  Dall.  296  ;  Sam.  Houston's 
Case,  1 1  vol.  of  Benton's  Condensed  Debates,  pp.  644,  658,  where 
the  whole  case  for  striking  Stanberry  for  words  spoken  in  debate  is 
given.  This  was  a  contempt  not  committed  in  the  presence  of  the 
House,  but  upon  the  avenue,  for  words  spoken  arid  published. 
Houston  was  not  a  member  of  the  House,  and  was  punished  by 
reprimand.  Punishment  for  a  breach  of  privilege  should  only  bo 
iunict.-d  in  cases  of  strong  necessity.  (Jarvis's  Case,  and  Randolph 
k  Whitney's  Case);  Houston's  Case,  11  Beaton's  Debates  658. 


Cl.  2,  3.]       CONTEMPTS — EXPULSION,   49,    50,    51.  87 

"Whatever  may  hare  a  tendency  to  impair  the  freedom  of  debate,  or 
to  detract  from  the  independence  of  the  representatives  of  the 
people,  is  a  breach  of  privilege.  Id.  669.  See  the  question  dis 
cussed.  Jefferson's  Manual ;  Tucker  Blackstone  App.  note  200, 
205  ;  1  Story  on  the  Const.  §  845-850,  3  ed. 

49.  It  seems  to  be  settled  that  a  member  may  be  expelled  for  For  what 
any  misdemeanor  which,  though  not  punishable  by  any  statute,  is  P^K"  ^°m~ 
inconsistent  with  the  trust  and  duty  of  a  member.     Blount's  Case,  p(eneti»e 

1  Story's  Const.  §  838 ;  Smith's  Case,  1  Hall's  L.  J.  459  ;  Brooks' 
Case,  for  assaulting  Senator  Sumner  in  the  Senate  Chamber,  for  193,  194. 
words  spoken  in  debate.  It  extends  to  all  cases  where  the  offense 
is  such,  as  in  the  judgment  of  the  House,  unfits  him  for  parliamen 
tary  duties.  (1  Bl.  Com.  163;  Id.  Christian's  note,  167;  Rex.  v. 
Wilkes,  2  Wilson's  R.  251 ;  Com.  Dig.  Parliament  G.  5  ;  1  Hall's 
Law  Journ.,  459,  466).  1  Story's  Const.  §  838. 

The  Sergeant-at-arms  has  no  authority  to  arrest  by  deputy.     F. 
B.  Sandborn's  Case,  1  Kent's  Com.  11  ed.  236,  note  2. 

The  power  to  punish  for  contempt  is  inherent  in  all  legislative  Whence  are 
assemblies.     1  Kent's  Com.  236.     This  has  been  denied  in  Eng-  the  powers 
land.      (Kelly  v.   Carson,  4  Moore  Privy  Council ;    63  Fenton  v.  ae 
Hampton,  11   Id.  347).     Id.;  Rex  v.  Flower,  8  T.   314;  Yatea  v. 
Lansing,  9  John.  417.     And  see  1  Story's  Const.  3d  ed.  §  845, 
850,  and  his  notes  which  exhaust  the  authorities. 

William  Blount  was  expelled  for  an  attempt  to  seduce  an  United  193,  19-t 
States  interpreter  from  his  duty,  and  to  alienate  the  affections  and 
confidence  of  the  Indians  from  the  public  officers  residing  among 
them,  &c.      (Journals  of  the  Senate,  8th  July,  1797  ;  Serg.  Const. 
Ch.  28,  p.  286),  Story's  Const.  §  804. 

50.  On  the  14th  March,  1861,  the  Senate  passed  the  following  Who  were 
resolution :   "  Whereas  the  seats  of  Albert  G.  Brown  and  Jefferson  expelled  for 
Davis  of  Miss.,  Stephen  R.  Mallory  of  Florida,  Clement  C.  Clay,  jjjfijjtk 
jr.    of  Ala.,  Robt.  Toombs   of  Ga.,   and  Judah  P.   Benjamin   of  rebellion? 
Louisiana,   having  become  vacant:    Therefore,  Resolved,  that  the 
Secretary  be  directed  to  omit  their  names  respectively  from  the 

roll."  Senate  Journal,  14  March,  1861.  Jesse  D.  Bright  of  Indiana, 
was  also  expelled  for  treasonable  correspondence  with  Jefferson 
Davis.  Senate  Journal,  1  March,  1861. 

[3.]  Each  house  shall  keep  a  journal  of  its  proceed- What  is  tho 
ings,  and  from  time  to  time  publish  the  same,  except- Journals? 
ing  such  parts   as  may,  in  their  judgment,  require 
secrecy ;  and  the  yeas  and  nays  of  the  members  of  Yeas  and 
either  house,  on  any  question,  shall,  at  the  desire  of  n< 
one-fifth  of  those  present,  be  entered  on  the  journal. 

51.  The  object  is  to  ensure  publicity.     Story's  Const.  §  840.  What  is  tho 
These  journals  have  been  published  in  various  editions  and  are  object  of  tho 
valuable  sources  of  information.  journu 


88  COMPENSATION",   51-55.     [Art.  L,  Sec.  5,  6. 

Yeaa  and  "  YEAS  AND  NAYS  "  are  simply  a  call  for  the  record  of  each  mem 
ber's  vote  upon  the  questions  stated  by  the  Speaker. 

state  the          [4.]  Neither  House,  during  the  session  of  Congress, 
adjourn-       shall,  without  the  consent  of  the  other,  adjourn  for 

meats.  TIT  i 

more  than  three  days,  nor  to  any  other  place  than  that 
in  which  the  two  houses  shall  be  sitting. 

What  is  the      52.  This  places  Congress  independent  of  the  President,  except 
object  of  the  m  cases  of  disagreement.     Story's  Const.  §  843. 
power  ? 

HOW  of  SEC.  VI. — [1.]   The  Senators  and  Representatives 

compensa-        -,     ,,  .  A.  ,,          ,  i •     .  •  '• 

tion?  shall  receive  a  compensation  for  their  services,  to  be 

ascertained  by  law,  and  paid  out  of  the  treasury  of  the 
United  States.  They  shall,  in  all  cases,  except  treason, 

Privileges  ?  felony,  and  breach  of  the  peace,  be  privileged  from 
arrest,  during  their  attendance  at  the  session  of  their 
respective  houses,  and  in  going  to,  and  returning  from 
the  same ;  and  for  any  speech  or  debate  in  either 
House,  they  shall  not  be  questioned  in  any  other 
place. 

What  is  the      53.  COMPENSATION. — The  rate  of  compensation  or  pay  has  been 

compensa-     several  times  increased  to  meet  the  exigencies  of  the  diminished 

bear's?        m"  value  of  money.     1  Story's  Const.  §  858.      It  is  now  five  thousand 

dollars  per  annum  for  the  Senators  and  Representatives,  and  eight 

thousand  dollars  for  the  Speaker ;  and  twenty  cents  a  mile,  by  the 

nearest  usually  traveled  route.     14  St.  p.  323  §  17. 

The  members  of  the  British  Parliament  receive  no  compensation. 
(1  Blackst.  Com.  174,  and  Christian's  note  34);  Story's  Const. 
§  853.  The  subject  is  one  on  which  there  was  much  division  in 
the  Convention.  (Journal  of  the  Convention,  67,  ]  ]  6-119,  142-151 ; 
2  Elliot's  Debates.  279,  '280;  4  Elliot's  Debates,  92-99.  The 
reasons  for  and  against  discussed.  Rawle  on  the  Const,  ch.  18,  p. 
179);  Story's  Const,  §  854-858.  See  Confederation,  ante  Art.  V., 
p.  11. 

ir<>w  fixed?      54.  "To  BE  ASCERTAINED  BY  LAW,"  removes  the  subject  from 
And  why?     the  pride  and  parsimony,  the  local  prejudices  and  local  habits  of  any 
M-         section  of  the  Union.      (3  Elliot's  Debates,    279.)     Story's  "Const. 
§857. 

What  are          55    THIS  PRIVILEGE,  which  means  freedom  from  arrest,  has  be- 
their  ^  privi-  longed  to  all  legislative  bodies  on  the  Continent,  and  immemo- 

rially    to   the    English    Parliament.      (1    Black.   Com.    164,    165; 

Com.  Dig.  Parliament  D.  17;  Jefferson's  Manual,   §  3,  Privilege; 

Benyon  v.  Evelyn,  Sir  0.  Bridge.  E.  334.)     1  Story  on  Const  § 


01. 4,  1.]  PRIVILEGE-ARREST,    55-61.  89 

859.  It  could  not  be  surrendered  without  endangering  the  public 
liberties,  as  well  as  the  private  independence  of  the  members. 
(1  Kent's  Com.  Lect.  11.  BoLton  v.  Martin,  Dallas  296.  Coffin  v. 
Coffin,  4  Mass.,  R.  1)  Story's  Const.  §  869.  See  Ante  Art.  V.,  p.  1 1. 
It  is  not  merely  the  privilege  of  the  member  or  his  constituents, 
but  the  privilege  of  the  House  also.  And  every  man  must  at  his 
peril  take  notice  who  are  the  members  of  the  house  returned  of 
record.  (4  Jefferson's  Manual,  4),  1  Story's  Const.  §  860. 

56.  "TREASON,  FELONY,  OR  BREACH  OF  THE  PEACE."      This  From  what 
would  seem  to  extend  to  all  indictable  offenses,  as  well  those  which  ounces? 
are  in  fact  attended  with  force  and  violence,  as  those  which  are 

only  constructive  breaches  of  the  peace  of  the  government,  inas 
much  as  they  violate  its  good  order.  1  Bl.  Cora.  166;  1  Story's  192,194, 
Const.  §  865.  The  words  were  borrowed  from  the  common  law, 
14  Inst.  25  ;  1  Black.  Com.  165  ;  Com.  Dig.  Parliament  D.  Breaches 
of  the  peace  include  libels.  Rex  v.  Wilkes,  2  Wilson's  R.  151.) 
Story's  Const.  §  865. 

57.  ARREST.     They  are  privileged  not  only  from  arrest,  both  on  From   what 
judicial  and  mesne  process,  but  also  from  the  service  of  a  summons  )^|f?privl~ 
or  other  civil  process,  while  in  attendance  on  their  public  duties.     ' 
Geyer's  Lesse  v.  Irwin,  4  Dall.  107  ;  Nones  v.  Edsall,  1  Wall.  Jr. 

191;  1  Story's  Const.  §  860;  Coxe  v.  McClenachau,  3  Dall.  478. 
Jefferson's  Manual,  §  3  and  4. 

The  privilege  is  personal  and  does  not  extend  to  servants  or 
property.  It  is  only  for  a  reasonable  time,  eundo,  morando,  et  ad 
propria  redeundo.  (Holliday  v.  Pitt,  2  Str.  R.  985 ;  S.  C.  Cas. 
Temp.  Hard.  28;  1  Black.  Com.  165,  Christian's  note  21;  Barnard 
v.  Mordaunt,  1  Kenyon  R.  125 ;  4  Jeff.  Manual,  §  3);  Story's  Const. 
§  861,  862,  864. 

58.  THE  EFFECT  of  the  arrest  is,  that  it  is  a  trespass  db  inilio,  What  is  the 
actionable  and  indictable,  and  punishable  as  a  contempt  of  the  house.  effcct  of  the 
(1  Black.  Com.  164-166;  Com.  Dig.  Parliament  D.  17;  Jefferson's  an 
Manual,  §  3.)     Story's  Const.  §  863.    The  member  may  also  be  dis 
charged  by  motion  to  a  court  of  justice,  or  upon  a  writ  of  habeas  cor 
pus.     (Jefferson's  Manual,  §  3 ;    2  Str.  990 ;    2  Wilson's  R.  151 ; 

Cas.  Temp.  Hard.  28).     1  Story's  Const.  §  863. 

59.  The  privilege  from  arrest  commences  from  the  election  and  "When  does  it 
before  the  member  takes  his  seat  or  is  sworn.    (Jefferson's  Manual,  commence? 
§  3;  but  see  Comyn's  Dig.  Parliament  D.  17.)     Story's  Const.  §  864. 

60.  One  who  goes  to  Washington  duly  commissioned  to  repre-  In  whose  fa 
sent  a  State  in  Congress,  is  privileged  from  arrest,  eundo,  morando  et vor? 
redeundo;  and  though  it  be  subsequently  decided  by  Congress,  that 

he  is  not  entitled  to  a  seat  there,  he  is  protected  until  he  reaches 
home,  if  he  return  as  soon  as  possible  after  such  decision.  Dunton 
v.  Halstead,  4  Penn.  L.  J.  237. 

61.  "AND   FOR  ANY  SPEECH  OR  DEBATE   IN  EITHER  HOUSE  THEY  What  is  free 
SHALL  NOT  BE  QUESTIONED  IN  ANY  OTHER  PLACE."  ££? 

This  secures  the  freedom  of  debate.     (2  Wilson's  Law  Sect.  156  ;    '  246,  247. 
1  Black.  Com.  164,  165.)     Story's  Const.  §  866. 


90  PRIVILEGE,    61,    62,    63.      [Art.  I.,  Sec.  6,  7, 

But  this  privilege  is  strictly  confined  to  words  spoken  in  the 
course  of  parliamentary  proceedings,  and  does  not  cover  things  done 
beyond  the  place  and  limits  of  duty.  (Jefferson's  Manual,  §  3) 
Story's  Const.  866. 

The  privilege  does  not  cover  the  publication  of  the  speech  by  the 
member.  (The  King  v.  Creevy,  1  Maule  and  Selvr.  273.  Coffin  v. 
Coffin,  4  Mass.  R.  .1)  But  see  Houston's  Case  (Doddridge  and  Bur 
gess  Speeches  in  1832).  Story  on  Const.  §  866. 

From  what      [2.]  No  senator  or  representative  shall,  during  the 

senators  Md  time  for  which  he  was  elected,  be  appointed  to  any  civil 

tfvesexdud-  office  under  the  authority  of  the  United  States,  which 

shall  have  been  created,  or  the  emoluments  whereof 

shall  have  been  increased,  during  such  time  ;  and  no 

person  holding  any  office  under  the  United  States,  shall 

be  a  member  of  either  house  during  his  continuance  in 

office. 

How  does         62.  The  acceptance  by  a  member  of  any  office  under  the  United 

the    accept-  States,  after  he  has  been  elected  to,  and  taken  his  seat  in  congress, 

office  'vacate  operates  as  a  forfeiture  of  his  seat.     Van  .Ness's  Case,  Cl.  &  Hall, 

another'?        122;  Yell's  Case  in  1846-7.     Yell  had  been   elected  a  volunteer 

colonel  in  Arkansas,  and  marched  to  Mexico.     He  did  not  resign; 

but  the  governor  ordered  an  election,  and  Newton  was  elected,  and 

served  out  the  term.     Continuing  to  execute  the  duties  of  an  office 

25.         under  the  United  States,  alter  one  is  elected  to  Congress,  but  before 

he  takes  his  seat,  is  not  a  disqualification,  such  office  being  resigned 

prior  to  the  taking  of  the  seat.     Hammond  v.  Herrick,  Cl.  &  Hall, 

287;   Earle's  Case,  Id.  314;  Mumford's  Case,  Id.  316. 

A  person  holding  two  compatible  offices  or  employments  under 
25.         the  government  is  not  precluded  from  receiving  the  salaries  of  both, 
&c.     (Converse  v.  The  United  States,  21  How.  463.)     9  Op.  508. 

6*8.  "  DURING  THE  TIME  FOR  WHICH  HE  WAS  ELECTED"  does  not 
rc;ich  the  whole  evil.  (Rawle  on  the  Const,  ch.  19,  p.  184;  1 
Tucker's  Black.  App.  375.)  Story's  Const.  867,  868. 

What  is  the      A  collector  cannot,  at  the  same  time,  hold  the  office  of  inspector 
eflVct  of        of  customs  and  claim  compensation  therefor.    Stewart  v.  The  United 


oilices  ?  On  the  acceptance  and  qualification  of  a  person  to  a  second  office, 

incompatible  with  the  one  he  is  then  holding,  the  first  office  is  ipso 
facto  vacated.  (The  People  v.  Carrique,  2  Hill,  93.)  It  operates 
25.  as  an  implied  resignation  ;  an  absolute  determination  of  the  original 
office.  (Rex  v.  T.elawney.  3  Burr,  1616;  Millward  v.  Thatcher,  2 
T.  R.  87;  Wilcoc-k  on  Municipal  Corp.  240,  617;  Ang.  &  Ainoa 
on  Corp.  255.)  Paschal's  Annotated  Digest,  note  200,  p.  67  ;  Bien- 

court  v.  Parker,  27  Tex.  262. 
inhere  must 

veuieabuE?      SEC.  VII.—  [1.]   All  bills  for  raising  revenue  shall 


01.  1,  2.]  EEVENUE,    VETO,    64,    65.  91 

originate  in  the  house  of  representatives;  but  the 
senate  may  propose  or  concur  with  amendments,  as  on 
other  bills. 

64.  This  is  copied  from  a  rule  governing  the   English  Parlia-  What  are 
merit.     Story's  Const.  §  864.     The  reason  is  that  the  commons  orbills? 
members  of  the  house  are  the  immediate  representatives  of  the 
people.    Id.    Bills  are  the  forms  of  enactments  before  they  are  acted 

upon  by  the  house.  Those  for  raising  revenue  are  generally  framed 
upon  the  estimate  of  the  heads  of  departments. 

65.  REVENUE.     That  which   returns  or  is  returned;    a  rent,  Whrt is rev- 
(reditus);  income;  annual  profit  received  from  lands  or  other  pro- enue? 
perty.     (Cowell).     Burrill's  Law  Die.  REVENUE. 

Here  it  means  what  are  technically  called  "  money  bills."  Story's 
Const.  §  874.  In  practice  it  is  applied  to  bills  to  levy  taxes  in  the 
strict  sense  of  the  word.  (2  Elliot's  Debates,  283,  284).  Story's 
Const.  §  880.  And  see  1  Tucker's  Blacks.  App.  261. 

[2.1  Every  bill  which  shall  have  passed  the  house  of  What  is  the 

T      ,  T     n    1      r-          •     i  manner  of 

representatives  aud  the  senate,  shall,  before  it  become  passing 
a  law,  be  presented  to  the  President  of  the  United 
States ;  if  he  approve,  he  shall  sign  it,  but  if  not,  he       165. 
shall  return  it,  with  his  objections,  to  that  house  in 
which  it  shall  have  originated,  who  shall   enter  the  What  of  the 
objections  at  large  on  their  journal,  and  proceed  to 
reconsider  it.     If,  after  such  reconsideration,  two-thirds 
of  that  house  shall  agree  to  pass  the  bill,  it  shall  be 
sent,  together  with  the  objections,  to  the  other  house,  HOW  over- 
by  which  it  shall  likewise  be  reconsidered,  and  if  ap 
proved  by  two-thirds  of  that  house,  it  shall  become  a 
law.     But  in  all  such  cases  the  votes  of  both  houses 
shall  be  determined  by  yeas  and  nays,  and  the  names 
of  the  persons  voting  for  and  against  the  bill  shall  be 
entered  on  the  journal  of  each  house  respectively.     If 
any  bill  shall  not  be  returned  by  the  president  within  if  the   bin 
ten   days  (Sundays  excepted)  after  it  shall  have  been  turned  ?e~ 
presented  to  him,  the  same  shall  be  a  law,  in  like  man 
ner  as  if  he  had  signed  it,  unless  the  Congress  by  their 
adjournment  prevent  its  return,  in  which  case  it  shall 
not  be  a  law. 


92  VETO,  66,  67.  [Art.  I.,  Sec,  7, 

"When  do          66.  Every  bill  takes  effect  as  a  law,  from  the  time  when  it  is 
bills  take       approved  by  the  president,  and  then  its  effect  is  prospective,  and 
not  retrospective.     The  doctrine  that,  in  law,  there  is  no  fraction 
of  a  day,  is  a  mere  legal  fiction,  and  has  no  application  in  such  a 
case.     In  the  matter  of  Richardson,  2  Story,  571 ;  People  v.  Camp 
bell,  1  Cal.  400.     But  this  is  denied  to  be  law.     In  the  matter  of 
Welman,   20  Verm.   653;    In  the  matter  of  Howes,  21  Id.  619. 
The  practice  of  the  presidents  has  been  not  to  approve  bills,  not 
signed  by  the  presiding  officers  before  their  actual  adjournment. 
Can  we  so         We  cannot   go   behind  the  written  law.     An  act  of  Congress 
neoonff         exam^ne^  and   compared  by  the  proper  officers,  approved  by  the 
president  and  enrolled  in  the  Department  of  State,  cannot  after 
wards  be  impugned  by  evidence  to  alter  and  contradict  it.      9  Op. 
2,3. 

"What  is  the     67.  This  returning  of  the  bill  commonly  called  the  "  VETO 
veto  power?  POWER,"  is  simply  the  negative  power  of  the  president,  which  exists 
in  the  English  Parliament.     But  the  king's  veto  or  negative  is  a 
final  disposition  of  the  bill.     1  Blacks.  Com.  154.     The  privilege  is 
a  part  of  the  king's  prerogative  never  exercised  since  1692;    1 
Kent's  Com.  226-229 ;  De  Lolme  on  Const,  ch.  17,  p.  390,  391. 
Define  the         "VETO;"  I  (FORBID),  the  word  by  which  the  Roman  tribunes 
word  ?  expressed  their  negative  against  the  passage  of  a  law  or  other  pro 

ceeding,  which  was  also  called  interceding,  (inter cedere).     (Adams' 
Roman  Ant.  13,  145,  146.)     Burrill's  Law  Die.  VETO.     And  see  1 
Wilson's  Law  Lect.  448,  449;  the  Federalist,  No.  51,  69,  73;  Rawle's 
Const.  Ch.  6,  p.  61,  62  ;  Burke's  letter  to  the  Sheriffs  of  Bristol  in 
1777,  for  the  reasons  why  the  exercise  has  been  forborne. 
What  are  its      It  is  intended  as  a  defence  of  the  executive  authority,  and  also  as 
objects?        an   additional  security  against  rash,  immature,  and  improper  laws. 
Idem,  and  Story's  Const.  §  881-893. 

The  veto  power  was  rarely  exercised  and  never  overcome  during 
the  first  forty  years  of  the  government.  (Story's  Const.  §  888.) 

The  most  notable  instances  of  its  exercise  to  prevent  legislation, 
which  had  really  not  been  made  issues  in  the  popular  contests  for 
the  presidency,  were  the  vetos  of  President  Jackson  of  the  renewal 
74,  81.  of  the  charter  of  the  United  States  bank  in  1832  ;  and  also  of  his 
veto  of  the  Maysville  Turnpike  road.  In  both  these  messages  the 
constitutional  power  of  Congress  was  denied. 

In  the  exciting  contest  of  1840,  the  recreation  of  a  National  bank 

was  one  of  the  favorite  issues  of  the  successful  party.     But  Vice- 

President  Tyler,  having  succeeded   to  the  presidency,  after   the 

37.         death   of  General  Harrison,  the  exercise  of  the  negative  power 

created  an  obstacle  which  could  not  be  overcome  by  a  two-thirds  vote. 

166.        Some  Internal  improvement  measures  and  the  French  Spoliation 

appropriations  were  also  defeated   by  the  negatives  of  President 

Polk.     But  the  most  notable  instances  of  the  exercise  of  the  power 

have  been  during  the  administration  of  President  Johnson. 

First,  in  1866,  the  defeat  of  what  is  called  the  "  Freedmen's 
Bureau  bill,"  may  be  classed  among  the  measures  incident  to  his 
tory,  where  the  two-thirds  majority  could  not  be  found  to  overcome 
the  negative  of  the  executive.  But  the  passage  of  the  "  Civil  Righta 
bill "  and  the  several  acts  for  the  reconstruction  of  the  rebel  states 


01.  2,  3.]  VETO,    KESOLUTION,    67,    70.  93 

(found  in  this  volume),  are  the  first  instances  wherein  important 
measures  have  been  passed  by  the  requisite  two-thirds  majority.  275-279. 
And  as  the  president  urged  the  unconstitutionally  of  the  measures,- 
particularly  the  last,  the  question  of  the  duty  of  the  executive  to  see 
the  laws  faithfully  executed,  which  he  still  believes  to  be  unconsti 
tutional,  or  still  to  urge  his  objections  after  they  had  been  over 
come,  according  to  prescribed  forms,  is  for  the  first  time  before  the 
judgment  of  the  nation.  The  very  fact  that  the  measures  are  in 
regard  to  States,  which  the  president  contends  are  entitled  to  repre-  46. 
sentation,  may  have  no  small  influence  upon  his  judgment.  Presi 
dent's  Message,  Dec.,  1861. 

6§.  "Two  THIRDS." — On  the  7th  July,  1856,  the  senate  of  the  What  is  a 
United  States  decided,  by  a  vote  of  thirty-four  to  seven,  that  two-  Quorum? 
thirds  of  a  quorum  only  were  requisite  to  pass  a  bill  over  the  presi 
dent's  veto,  and  not  two-thirds  of  the  whole  senate.      9  Law  Rep. 
196.     In  the  ratification  of  treaties,  it  is  expressly  provided  that 
two-thirds  of  the  senators  present  shall  concur.  And  see  Cushing's        IIS. 
Law  of  Legislative  Assemblies,  §  2387  ;  see  Story's  Const.  §  891 ; 
1  Kent's  Com.  249,  note  b. 

69.  The  president  must  receive  the  bill  ten  entire  days  before  What  of  the 
adjournment,  or  it  will  not  become  a  law.     Hyde  v.  White,  24  Tex. ten  days? 
143,  145 ;  Paschal's  Annotated  Dig.  note  193,  p.  62. 

[3.1  Every  order,  resolution,  or  vote,  to  which  the  what  shaii 

J    .    .  '  ..          be  luvsc-nu-d 

concurrence  of  the  senate  and  house  of  representatives  to  the  presi- 
may  be  necessary  (except  on  a  question  of  adjourn 
ment),  shall  be  presented  to  the  President  of  the  Uni-       52. 
ted  States ;  and  before  the  same  shall  take  effect,  shall 
be  approved  by  him ;  or  being  disapproved  by  him,       244. 
shall  be  repassed  by  two-thirds  of  the  senate  and  house 
of  representatives,  according  to  the  rules  and  liinita-  Has  he  tho 

•i      T  •      ^  /•      i  -n  veto? 

tions  prescribed  in  the  case  of  a  bill.  67. 

70.  A  JOINT  RESOLUTION  approved  by  the  president,  or  duly  Have  joint 
passed  without  his  approval,  has  all  the  effect  of  law.     But  sepa-  ^JjJfJjJ^ 
rate  resolutions  of  either  house  of  congress,  except  in  matters  ap-  lu\y?e 
pertaining  to  their  own  parliamentary  rights,  have  no  legal  effect  to 
constrain  the  action  of  the  president,  or  of  the  heads  of  depart-         46. 
ments.     6  Opin.  680. 

The  " concurrent  resolution"  of  1866  in  reference  to  the  States 
in  rebellion,  not  being  admitted  by  either  house,  was  not  sub 
mitted  to  the  president. 

The  reason  for  the  exception  as  to  adjournments  is,  that  this  is  a  Why  the  ex- 
power  peculiarly  fitted  to  be  exercised  by  the  two  houses  in  order  ception  as  to 
to  secure  their  independence  and  prompt  action.     Story's  Const,  ^en"™" 
§  892.  52. 


94  POWER,    TAXES,    71,   72.          [Art.  I.,  Sec.  8, 

with  what       SEC.  VIII. — The  Congress  shall  have  power — 

limit-itioi)8 

is  the  word      71.  POWER. — In  this  connection  means  authority  to  enact.     It 

pmcer  to  be  js  to  be  taken  in  connection,  1,  with  the  general  declaration  of  the 

nsu  orei  .  grgt  sectjon;  ^hat  K  a}j  legislative  POWER  herein  granted  shall  be 

41,48.       vested  in  a  Congress  of  the  United  States;"  2,  with  the  last  clause 

in  this  section,  '*  to  make  all  laws  which  shall  be  necessary  and 

133.        proper  for  carrying  into  execution  the  foregoing  powers,  and  all 

other  powers  vested  by  this  Constitution  in  the  government  of  the 

142, 144.     United  States,  or  in  any  department  thereof;"  3,  with  the  inhibi- 

268,  269.     tions  in  the  9th  and  10th  sections  of  this  article;  4,  with  the  IXth 

l,  148.      and  Xth  amendments;  5,  with  all  the  necessary  powers  growing 

out  of  other  subjects  contemplated  by  the  Constitution. 

Arc  the  fol-  Although  the  powers  here  following  have  been  called  by  Mr. 
lowing  prop-  Hamilton.  Mr.  Jefferson,  Mr.  Madison,  and  almost  by  universal  cus- 
a ted 'powers?  *om  "enumerated  powers,"  and  are  generally  divided  by  Arabic  num 
bers  into  eighteen  clauses,  yet  it  will  be  seen  by  reference  to  the 
Note  p.  28,  authentic  copy  printed  from  the  original,  that,  like  the  versification 
3y-  in  the  Bible,  the  enumeration  has  been  the  work  of  printers.  Yet 

269.  the  practice  of  calling  these  special  powers  "enumerated"  has  too 
long  obtained  to  ever  be  abandoned.  Hamilton :  Federalist,  No. 
83  ;  Jefferson:  Opinion  on  the  Bank.  1781 :  Madison  ;  Veto  Message 
of  1817 ;  Monroe:  veto  message  of  1822  ;  Farrar,  §  283-288;  Story's 
Const.  §  981. 

Were  the  fol-      The  powers  specifically  granted  to  Congress  are  what  are  catted 

lowing  spe-   cnumerat  d  powers,  and  are  numbered  in  the  order  in  which  they  stand. 

actually6*"    (Monroe!  4tn  May,  1822.)     Story's 'Const.  §  981.     Certified  copies 

enumerated  of  the  Constitution  have  been  printed  by  Hickey,  Curtis,  and  Far- 

in  the  origi-  rar,  and  now  by  the  author,  in  which  the  enumeration  of  articles  and 

the constitu- sec^ons  appear;  but  there  is  none  for  the  clauses.     For  convenience 

tion?  the  enumeration  of  clauses  is  retained  in  [brackets].     The  editor 

does  not  partake  of  the  belief  that  the  habit  of  calling  the  following 

powers  enumerated  has  been  a  fruitful  source  of  misconstruction ; 

for  without  the  figures  every  mind  would  number  them  for  itself. 

what  are         [2.]  To  lay  and  collect  taxes,  duties,  imposts,  and 

and  objects  excises ;  to  pay  the  debts  and  provide  for  the  common 

defense  and  general  welfare  of  the  United  States ;  but 

all  duties,  imposts,  and  excises  shall  be  uniform  through 

out  the  United  States. 

Define   tax-  ]  72.  '*  TAXES." — Taxare.     In  the  civil  law.     To  rate  or  value. 
es?  Calv.  Lex.     To  lay  a  tax  or  tribute.     Spellman.     In  old  English 

22,23.  practice,  to  assess;    to  rate  or  estimate;    to  moderate  or  lay  an 

assessment  or  rate.  Burrill's  Law  Die.,  TAX.  A  rate  or  sum  of 
money  assessed  on  the  person  or  property  of  a  citizen,  by  govern 
ment,  for  the  use  of  the  nation  or  State.  (Webster.)  In  a  general 
sense — any  contribution  imposed  by  government  upon  individuals, 
for  the  use  and  service  of  the  State;  whether  under  the  name  of 
toll,  tribute,  tallage,  gabel,  impost,  duty,  custom,  excise,  subsidy, 
aid,  supply,  or  other  name.  (Story,  Const.  §  472;  1  Kent's  Com. 
254-257.  Burrill's  Law  Die.,  TAXES  ;  Tomlin's  Law  Die.  TAX. 


01,  1.]  TAXES,    DUTIES,    IMPOSTS,    73-76.  95 

In  a  stricter  sense — a  rate  or  sum  imposed  by  government  upon  what  in  a 
individuals  (or  polls),  lands,  houses,  horses,  cattle,  possessions,  and  stricter 
occupations;   as  distinguished  from  customs  du.ies,  imposts,  and  seus 
excises.     (Id. ;   Webster.)     This  is  the  ordinary  sense  of  the  word. 
In  New  York,  the  term  tax  has  been  held  not  to  include  a  street 
assessment.     1  Johns.  77,  80;  Sharp  v.  Spear,  4  Hill,  76;  People 
v.  Brooklyn,  4  Comst.  419.)     Literally,  or  according  to  its  del  i-  What  liter- 
vation — an  imp  isition -laid  by  government  upon  individuals,  accord-  ally  ? 
ing  to  a  certain  order  and  proportion,  (tribuium  certo  vrdine  consti-         22. 
tutum).      (Spelrnan,  voc.   TAXA)   Id.     Distinguished  from  eminent        144 
domain.    People  v.  Brooklyn.  4  Comst.  422-425;  s.  C.  6  Barb.  214. 
"Taxes"  means  burdens,  charges,  or  impositions,  put  or  set  upon 
persons  or  property  for  public  uses ;  and    this  is    the  definition 
which  the  Code  gives  to  tailage.     2  Inst.  522;  Garth.  438  ;  Matter 
of  the  Mayor,  &c.    11  John.  80. 

73.  THE  POWER  TO  LAY  AND  COLLECT  taxes,  duties,  imposts,  and  Over  what 
excises,  is  co-extensive  with  the  territory  of  the  United  States,  extent  of 
Loughborough  v.  Blake,  4  Wh.  317.  C°U22/23. 

The  power  of  taxation,  as  a  general  rule,  is  a  concurrent  power.  HOW  far  is 
The  qualifications  of  the  rule  are  the  exclusion  of  the  States  from  the  power 
the  taxation  of  the  means  and  instruments  employed  in  the  exer.  concurreilf* 
cise  of  the  functions  of  the  federal  government.     Van  Allen  v.  The 
Assessors,  3  Wallace,  585. 

74.  The  States  possess  the  power  to  tax  the  whole  of  the  inter-  What  power 
est  of  the  shareholder  in  the  shares  held  by  him  in  the  national  h,av«  tjl« 
banks.     Van  Allen  v.  The  Assessors,  3  Wallace,  588 ;  approved,  j£*^"  to 
Bradley  v.  Tiie  People,  4  Wallace.  462.     Chief- Justice  Chase,  in  a 
dissentient  opinion  for  himself  and  Justices  Wayne  and  Swayne, 
reviewed  McCulloch  v.   Maryland,  4  Wheat.  327,  and  Osborn  v. 

the  Bank  of  the  United  States,  9  Wheat.  73,  Weston  v.  The  city  of 
Charleston,  2  Pet.  449,  and  questioned  the  power  of  Congress  to 
authorize  State  taxation  of  national  securities,  either  directly  or  indi 
rectly.  Van  Allen  v.  The  Assessors,  3  Wallace,  593. 

A  city  cannot  tax  United  States  property  within  its  limits.     9th  What  limi- 
Op.  291.  -4»  tation   as   to 

The  jurisdiction  of  the  States  for  the  purposes  of  State  taxation  is  the  6tates  ? 
supreme,  and  Congress  can  have  no  power  or  control  in  this  regard. 
State  Treasurer  v.  Wright,  28  111.  509;  Gibbons  v.  Ogden,  9  Wh.  199. 

The  State  has  the  right  to  collect  taxes  in  gold  or  silver  coin  only;         82. 
and  Congress  cannot  control  by  its  legal  tender  laws.    State  Treas 
urer  v.  Wright,  28  111.  509. 

The  States  cannot  impose  a  tax  upon  the  salaries  of  federal  offi-  97,  99, 155. 
cers.     (Dobbins  v.  The  Commissioners  of  Erie  County,  16  Pet.  435.) 
9th  Op.  477. 

75.  DUTIES. — Almost  equivalent  to  taxes  and  perhaps  synonym-  What  are 
ous  with  the  imposts.     (Federalist  Nos.  30,36.     Madison's  letter  dlltius  ? 
to  C'abell.  18th  Sept.  1828;  3  Elliot's  Debates,  289.)    Story's  Const.       72, 76. 
§  952;  Hylton  v.  The  United  States,  3  Ball.  171,  177. 

76.  IMPOSTS. — A  custom  or  tax  levied  on  articles  brought  into  a  Define  im- 
country.    (United  States  v.  Tappan,  11  Wheat.  419.     A  dutyonP06ts? 


96  EXCISES,    76,   77.  [Art.  I.,  Sec.  8, 

imported  goods  and  merchandise.  Story's  Const.  952.  Id.  75. 
Abridgment,  §  472.  Burrill's  Law  Die.  IMPOST.  In  a  large  sense,  14-1. 
any  tax,  duty  or  imposition.  Id. 

77.  EXCISE.    An  inland  imposition  upon  commodities,  charged  What  are 
in  most  cases  on  the  manufacturer.     2  Steph.  Com.  579.     A  duty,  excises? 
or    tax   on    certain    articles    produced    or    consumed'  at    home.        14i. 
"VYharton's  Lex.  EXCISE.     1  Bl.  Com.  318.     It  includes  also  the 
duties   on  licenses  and  auction  sales.     2  Steph.  Com.  581 ;  3  Id. 
314.     And  see  Story's  Const.  §  953.     Andrews  Rev.  Laws,  §  133; 
Burrill's  Law  Die.  EXCISE.     2  "Elliot's  Debates,  209.    Generally  the 
opposite  of  imposts.     Story's  Const.  §  953. 

Licenses  under  the  act  of  June  30,  1864,   "to  provide  internal  What 
revenue  to  support  the  government,  &c."  (13  Stat.  223),  and  the  authority 
amendatory  acts,  conveyed  to  the  licensee  no  authority  to  carry  on  ^nt/owi* 
the  licensed  business  within  a  State.     License  Tax  Cases,  5  Wai- fart 
lace,  462.     The  requirement  of  payment  for  such  licenses  is  only  a 
mode  of  imposing  taxes  on  the  licensed  business,  and  the  prohibi 
tion  under  penalties,  against  carrying  on  the  business  without  license 
is  only  a  mode  of  enforcing  the  payment  of  such  taxes.     The  pro 
visions   of  the    act     of  Congress    requiring    such   licenses,    and 
imposing  penalties  for  not  taking  out  and  paying  for  them,  are  not 
contrary  to  the  Constitution  or  to  public  policy.     Id. 

The  provisions  in  the  act  of  July  13,  1866,  "to  reduce  internal 
taxation,  &c."  (14  Stat.  93),  for  the  imposing  of  special  taxes,  in 
lieu  of  requiring  payment  for  licenses,  removes  whatever  ambiguity 
existed  in  the  previous  laws,  and  are  in  harmony  with  the  Consti 
tution  and  public  policy.  Id. 

The  recognition  by  the  acts  of  Congress  of  the  power  and  right         73. 
of  the  States  to  tax,  control,  or  regulate  any  business  carried  on  What  is  the 
within  its  limits  is  entirely  consistent  with  an  intention  on  the  part  power  of  tho 
of  Congress  to  tax  such  business  for  national  purposes. 

A  license  from  the  Federal  Government,  under  the  internal  rev 
enue  acts  of  Congress,  is  no  bar  to  an  indictment  under  a  State  law        267. 
prohibiting   the  sale  of  intoxicating    liquors.     The    License    Tax 
Cases,  5  Wallace,  462 ;  Pervear  v.  Commonwealth  ;  5  Wallace,  475. 

But  very  different  considerations  apply  to  the  internal  commerce  What  are 
or  domestic  trade  of  the  States.     Over  this  commerce  and  trade  the  t^l1",.* 
Congress  has  no  power  of  regulation  nor  any  direct  control.     This  £ 
power  belongs  exclusively  to  the  States.     No  interference  by  Con 
gress  with  the  business  of  citizens  transacted  wiihin  a  State  is 
warranted  by  the  Constitution,  except  such  as  is  strictly  incidental 
to  the  exercise  of  powers  clearly  granted  to  the  legislature.    Per 
vear  v.  Commonwealth,  470,  471. 

The  provisions  in  the  act  of  July  13,  1866,  "  to  reduce  internal 
taxation,  &c."  (14  Stat.  93),  for  the  imposing  of  special  taxes,  in 
lieu  of  requiring  payment  for  licenses,  removes  whatever  ambiguity 
existed  in  the  previous  laws,  and  are  in  harmony  with  the  consti- 
tion  and  public  policy.  Id. 

The  recognition  by  the  acts  of  Congress  of  the  power  and  right 
of  the  States  to  tax,  control,  or  regulate  any  business  carried  on 
within  its  limits  is  entirely  consistent  with  an  intention  on  the  part 
of  Congress  to  tax  such  business  for  National  purp:  ses. 


Cl.  1.]  PUBLIC   DEBT,    77,    78.  97 

A  license  from  the  Federal  Government,  under  the   internal 
revenue  acts  of  Congress,  is  no  bar  to  an  indictment  under  a  State        26T. 
law  prohibiting  the  sale  of  intoxicating  liquors.    (The  License  Tax 
Cases,  5  Wallace,  4G2  affirmed.)     Pervear  v.  The  Commonwealth, 
5  Wallace,  475. 

A  law  of  a  State  taxing  or  prohibiting  a  business  already  taxed  Of  prohibit- 
by  Congress,   as   ex.    grn    the   keeping   and   sale  of  intoxicating  OIT lllws? 
liquors, — Congress  having  declared  that  its  imposition  of  a  tax 
should  not  be  taken  to  abridge  the  power  of  the  State  to  tax  or 
prohibit  the  licensed  business — is  not  unconstitutional.     Id. 

78.  "  To  PAY  THE  DEBTS."     The  arrangement  and  phraseology  What  moans 
(connected  with  what  follows)  shows  that  the  latter  part  of  the  to  Pay  tlie 
clause  ("  To  provide  for  the  common  defence  and  general  welfare,")  79  §o 
was  intended  to  enumerate  the  purposes  for  which  the  money  thus     ' 
raised  was  intended  to  be  appropriated.     (President  Monroe's  Mes 
sage  of  4th  Dec.  1822.)     Story's  Const.  §978-981.  74-77. 

This  power  to  collect  taxes,  imposts,  and  excises,  subjects  to  the 
call  of  Congress  every  branch  of  the  public  revenue,  internal  and 
external.  (Monroe,  Id.)  Story's  Const.  §  981.  And  these  powers 
give  the  right  of  appropriating  to  the  purposes  specified,  according 
to  the  proper  construction  of  the  terms.  Id. 

Statement  of  the  public  debt  on  the  1st  day  of  January  in  each  of  the  Examine  the 
years  from  1 791  to  1842,  inclusive,  and  at  various  dates  in  sub-  statement  of 
sequent  years  to  July  1,  1866.  debt  ? 

On  the  1st  day  of  January 1791 $  75,463,476  52 

1792 77,227,92466 

1793 80,352,63404 

1794 78,427,40477 

1795 80,747,58738 

1796 83,762,17207 

1797 82,064,47933 

1798 79,228,52912 

1799 78,408,66977 

1800 82,976,29435 

1801 83,038,05080 

1802 80,712,63225 

1803 77,054,68630 

1804 86,427,120  88 

1805 82,312,15050 

1806 75,723,270  66 

1807 69,218,39864 

1808 65,196,31797 

1809 57,023,19209 

1810 53,173,217  52 

1811 48.005,587  76 

1812 45,209,73790 

1813 55,962,827  57 

1814 81,487,84624 

1815 99.833,660  15 

1816 127,334,933  74 

1817 123,491,965  16 


98 


PUBLIC  DEBT,   78. 


[Art.  I.,  Sec. 


On  the  1st  day  of  January 1818 103,466,693  83 

1819 95,529,64823 

1820 91,015,566  15 

1821 89.987,427  66 

1822 93',546,676  98 

1823 90,875,877  28 

1824 90,269,77777 

1825 83,788,43271 

1826 81,054,05999 

1827 >.  73,987,357  20 

1828 67,475,04387 

1829 58,421,41367 

1830 48,565,40650 

1831 39,123,191  68 

1832 24,322,235  18 

1833  7,001,032  88 

1834 4,760,081  08 

1835 351,28905 

1836 291,08905 

1837 1,878,22355 

1838 4,857,60046 

1839 11,983.73753 

1840 5,125,077  63 

On  the  first  day  of  January, . . .  1841 6,737,398  00 

1842 15,028,48637 

1843 27,203,45069 

On  the  first  day  of  July 1844 24.748,188  23 

1845 17,093,79480 

1846 16,750,92633 

1847 38,956,62338 

1848 48,526.37937 

1849 64,704,69371 

On  the  1st  day  of  December  . .  1850 64,228,238  37 

1851 62,560,395  26 

On  the  20th  day  of  November  .1852 65,131.692  13 

On  the  30th  day  of  December  .1853 67,340,628  78 

On  the  first  day  of  July 1854 47,242,206  05 

1855 39,9(59,731  05 

On  the  17th  day  of  November.  1856 30,963,909  64 

On  the  15th  day  of  November.  1857 29,060,386  90 

On  the  1st  day  of  July 1858 44,910,777  66 

1859 58,754,699,33 

1860 64,769,70308 

1861 90,867,82868 

1862 514.211,37192 

On  the  1st  day  of  January 1863 1,098,793,181  37 

1864 1,740,690,48949 

1865 2,682,593,02653 

1866 2,783,425,87921 

S.  B.  COLBY,  Registtr. 
TREASURY  DEPARTMENT, 

Register's  Office,  November  22,  1866. 


[01.  1.] 


PUBLIC   DEBT,    78. 


Report  of  Secretary  of  Treasury  on  the  Finances,  p.  304. 

The  following  is  a  statement  of  the  public  debt,  June  30,  1866, 
exclusive  of  cash  in  the  Treasury  : — 
Bonds,    10-40's,  5  per  cent.,  due 

in  1904 $171,219,100  00 

Bonds,   Pacific    railroad,    6    per 

cent.,  due  in  1895  and  189G. ..        6,042,000  00 
Bonds,  5-20's,  6  per  cent,  duo 

in  1882,  1884,  and  1885 

Bonds,  6  per  cent,  due  in  1881 . . 
Bonds,  6  per  cent.,  due  in  1 880 . . 
Bonds,  5  per  cent.,  due  in  1784 
Bonds,  5  percent.,  due  in  1871.  . 


Bonds,  6  per  cent.,  due  in  1868. .  8,908,341  80 

Bonds,  6  per  cent.,  due  in  1867. .  9,415,250  20 
Compound-interest  notes,  due  in 

1867  and  1868 159,012,140  00 

7-30  treasury  notes,  due  in  1867 

and  1868 806,251,550  00 


722,205,500  00 
265,317,700  00 
18,415.000  00 
20,000,000  00 
7,022,000  00 

$1,210,221,300  00 


Bonds,  Texas  indemnity,  past  due, 

not  presented  559,000  00 

Bonds,  treasury  notes,  &c.,  past 

due,  not  presented 3,815,675  80 


Temporary  loan,  ten  days' notice    120,176,195  65 
Certificates  of  indebtedness,  past 

due,  not  presented 26,391,000  00 


United  States  notes 400.891,368  00 

Fractional  currency 27,070,876  96 

Gold  certificates  of  deposit 10,713,180  00 


983,587,281  80 


4,377,65  80 


146,567,096  65 


438,675,424  96 

Total 2,783.425,879  21 

The  foregoing  is  a  correct  statement  of  the  public  debt,  as 
appears  from  the  books  and  Treasurer's  returns  in  the  Department, 
on  the  1st  of  November,  1867. 

THE   PUBLIC   DEBT  STATEMENT. 

WASHINGTON,  Nov.  6,  1867,    ) 
11:30  o'clock,  P.  M.        j" 

The  following  is  the  statement  of  the  public  debt  of  the  United 
States  on  the  1st  of  November,  1867  : — 

DEBT   BEARING   COIN   INTEREST. 

Five  per  cent,  bonds $  198,845,350 

Six  per  cent,  bonds  of  1857  and  1868 14,690  940 

Six  percent,  bonds  of  1881 283,676,600 

Six  per  cent,  five-twenty  bonds 1,267,898,100 

Navy  Pension  fund 13,000,001 


Total $1,778,110,991 


100  PUBLIC  DEBT.   78.  [Art.  I.,  Sec.  8, 

DEBT  BEARING  CURRENCY  INTEREST. 

Six  per  cent,  bonds $  18,042,000 

Three-year  compound-interest  notes 62,558,940 

Three-year  seven-thirty  notes 334,607,700 

Three  per  cent,  certificates 11,560,000 


Total $426,768,640 

MATURED  DEBT  NOT  PRESENTED  FOR  PAYMENT. 

Three-year  seven-thirty  notes,  due  August  15,  1867       $  3,371,100 
Compound-interest  notes,  matured  June  10,  July  15, 

August  15,  and  Oct.  15,  1867 9,316,1 00 

Bonds  of  Texas  indemnity 262,000 

Treasury  notes,  acts  July  17,  1861,  and  prior  thereto  163,661 

Bonds,  April  15,  1842 54,061 

Treasury  notes,  March  3,  1863 868,240 

Temporary  loan 4,168,375 

Certificates  of  indebtedness 34,000 


Total $18,237,538 

DEBT  BEARING   NO  INTEREST. 

United  States  Notes $357,164,844 

Fractional  Currency 30,706,433 

Gold  certificates  of  deposit 14,514,200 

Total $402,385,677 

Total  debt $  2,625,502,848 

AMOUNT  IN  THE  TREASURY. 

In  coin $111,540,317 

In  currency 22,458,080 


Total $  133,998,398 

Amount  of  debt,  less  cash  in  the  Treasury $  2,491,504,450 

HUGH  McCULLOOH, 

Secretary  of  the  Treasury. 

Report  of  the  Secretary  of  the  Treasury  on  the  finances,  p.  25. 
There  has  been  some  diminution  of  the  public  debt  since  the 
promulgation  of  this  report. 

Whatever  may  have  been  the  theories  and  controversies  about 
the  powers  of  Congress  to  levy  taxes  for  other  purposes  than  to 
pay  the  debts  of  the  United  States,  and  as  to  whether  indirect  or 
direct  taxes  are  most  equal  and  just,  it  is  certain  that  the 
enormous  debt  now  existing,  together  with  the  necessarily  increased 
expenses  of  supporting  the  government,  will  afford  a  fair  oppor 
tunity  of  giving  a  trial  to  every  mode  of  raising  revenue.  The 
278.  DEBTS  have  been  contracted.  The  great  future  question  is,  how  .shall 
the  power  to  levy  TAXES,  &c.,  be  most  wisely  exercised  in  order 
to  pay  them  ? 


Cl.  i.]  COMMON  DEFENCE;  7£*  101 

79.  To  PROVIDE  FOE  THE  COMMON  DEFENCE. — See  this  sentence  How  is  corn- 
contained  in  connection  with  the  conclusion,  that  all  duties,  imposts,  mon  defence 
and  excises  shall  be  uniform  throughout  the  United  States.     This  ionf|rue(i ? 
provision  operates  exclusively  on  the   power  granted  in  the  first     ' 
part  of  the  clause.     (Monroe.)     Story's  Const.,  §  982. 

The  object  is  to  secure  a  just  equality  among  the  States  in  the 
exercise  of  that  power  by  Congress.  (Monroe.)  Id.,  §  982. 

The  grant  consists  of  two-fold  power :  to  raise  ;   and  to  appro-  What  two 
priate  the  money.     (Monroe.)    Id.,  §  986.  powers  in 

The  power  in  this  clause  is  limited  by  the  nature  of  the  govern 
ment  only.  Id.,  and  §  991. 

For  a  more  limited  doctrine,  see  President  Jackson's  veto  mes 
sage  of  the  Maysville  road  bill,  27  May,  1830;  4  Elliot's  Debates, 
333-335;  4  Jefferson's  Correspondence,  524;  Jefferson's  message,  72-77. 
2d  Dec.,  1806;  Wait's  State  papers,  457,  458. 

The  extent  of  the  power  has  been  very  much   debated,  and 
perhaps  the  subject  was  exhausted  in  Congress,  as  reported  in  4th         80. 
Elliot's  Debates,   236,  240,  265,  278,  280,  284,  291,  292,   332,    334, 
and  in  Hemphill's  Report  on  Internal  Improvements,  10th  Feb., 
1831 ;  see  also  1  Kent's  Com.,  Lect.  XII,  250,  251 ;  Sergt's  Const.,  ' 
ch.   28,   311-314;  Rawle  on  the  Const.,  ch.  9,  p.  104;   2  United 
States   Law  Jour.,  April,  1826,  p.  251,  264-280;  Story's  Const., 
ch.  xiv. 

Every  one  will  determine  for  himself  the  practice  of  the  govern 
ment  from  the  appropriations  for  the  Cumberland  road  in  1806, 
down  to  the  Pacific  railroads,  and  judge  the  value  of  precedents, 
according  to  his  own  theories.  The  speeches  of  Mr.  Huger  and 
Grimke  in  the  South  Carolina  legislature,  in  1830,  may  well  be 
consulted  by  students.  The  term  is  necessarily  connected  with 
the  next,  "  the  general  welfare." 

The  Confederate  States  Constitution  contained  this  limitation : — 

"To  levy  and  collect  taxes,  duties,  imposts,  and  excises,  for  what  was 
revenue  necessary  to  pay  the   debts,  provide   for  the   common  theConfede- 
defence,  and  carry  on  the  government  of  the  Confederate  States ;  [rehell^CMi- 
but  no  bounties  shall  be  granted  from  the  treasury,  nor  shall  any  stitution  ? 
duties  or  taxes  on  importations  from  foreign  nations  be  laid  to  pro 
mote  or  foster  any  branch  of  industry;  and  all  duties,  imposts,  and 
excises   shall  be   uniform  throughout  the   Confederate    States." 
Paschal' s  Annotated  Dig.,  88. 

It  will  thus  be  seen  that,  as  in  the  preamble  of  the  Constitution  5, 11. 
of  this  peculiarly  indoctrinated  school,  they  took  "  TO  PROVIDE  FOR 
THE  GENERAL  WELFARE"  out  of  their  Constitution;  while  they  left 
the  "  COMMON  DEFENCE  "  iVi,  although  it  was  not  one  of  the  objects 
expressed  in  the  preamble. 

To  leave  no  doubt  of  the  intention  to  exclude  the  ideas  which  80-89. 
had  divided  the  country  upon  the  subject  of  internal  improvements, 
the  same  Constitution  contained  this  clause: — 

"  3.  To  regulate  commerce  with  foreign  nations,  and  among  the  82-89. 
several  States,  and  with  the  Indian  tribes ;  but  neither  this  nor 
any  other  clause  contained  in  the  Constitution,  shall  ever  be  con- 


102  DEFENCE,    DUTIES,  79,    80,    81.  [Art.  L,  Sec.  8 

strued  to  delegate  the  power  to  Congress  to  appropriate  money  foi 
any  internal  improvement,  intended  to  facilitate  commerce,  except 
for  the  purpose  of  furnishing  lights,  beacons,  and  buoys,  and  other 
aids  to  navigation  upon  the  coasts,  and  the  improvement  of  harbors 
and  the  removing  of  obstructions  in  river  navigation :  in  all  which 
cases  such  duties  shall  be  laid  on  the  navigation  facilitated  thereby, 
as  may  be  necessary,  to  pay  the  costs  and  expenses  thereof," 
Paschal' s  Annotated  Digest,  p.  88. 

The  object  of  this  was  to  prevent  land  internal  improvements  by 
the  National  government;  and  yet  we  find  the  same  men  as  eariy 
as  April  19th,  1862,  appropriating  a  million  and  a  half  of  dollars 
to  aid  in  the  construction  of  a  railroad  from  New  Iberia  in  Louisi 
ana  to  Houston  in  Texas.  Acts  of  Confederate  States  at  large,  34. 
Like  appropriations  were  made  to  complete  the  road  from  Danville 
to  Raleigh.  The  amendment  was  in  accordance  with  the  extreme 
States  rights  or  strict  constructionists'  views. 

Define  the         §O.  "AND  GENERAL  "WELFARE."     Judge  Story  believed  that  the 

g<elf!ire  *rue  ^mPor^  °f  t^ie  whole  clause  could  be  thus  expressed:  "The 
Congress  shall  have  power  to  lay  and  collect  taxes,  duties,  imposts, 
and  excises,  in  order  to  pay  the  debts,  and  to  provide  for  the  common 

11, 79,  89.  defence  and  general  welfare  of  the  United  States."  Story's  Const. 
79.  §  908.  Thus  limiting  the  power  of  the  government  to  tax  for  pro 
viding  for  the  common  defence  and  general  welfare.  Id.  and 
§  911-913. 

What  is  the  The  laying  taxes  is  the  power,  and  the  general  welfare  the  pur- 
^ose  ^*r  wni°n  ^ne  Power  is  to  be  exercised.  Congress  are  not  to 
lay  taxes  ad  libitum  for  any  purpose  they  please  ;  but  only  to  pay 
the  debts  or  provide  for  the  general  welfare  of  the  Union.  In  like 
manner  they  are  not  to  do  any  thing  they  please,  to  provide  for  the 
general  welfare ;  but  only  to  lay  taxes  for  that  purpose.  (Jeffer 
son's  Op.  on  the  Bank  of  the  United  States  15  Feb.  1781  ;  4  Jeffer 
son's  Correspondence  524,  525.)  Story's  Const.  §  926.  927,  note  3  ; 
Elliot's  Debates,  170,  183,  195,  328,  344;  3  Elliot's  Debates,  262; 
2  American  Museum,  434 ;  2  Elliot's  Debates,  81,  82,  311 ;  3  Elliot's 
Debates,  262,  290 ;  2  American  Museum,  544. 

22, 74.  The  power  does  not  interfere  with  the  power  of  the  states  to  tax 

for  the  support  of  their  own  governments.  Congress  is  not  em 
powered  to  tax  for  those  purposes  which  are  within  the  exclusive 
province  of  the  States.  Gibbons  v.  Ogden,  9  Wheat.  199;  1 
Kent's  Com.  251 ;  Sergeant's  Const.  Ch.  28,  p.  311-315.  Rawle'a 
Const.  Ch.  9,  p.  104;  2  United  States  L.  L,  April,  1826,  251-282. 

What  are  the      81.  "  ALL  DUTIES  TO  BE  UNIFORM."     Congress  has  plenary  power 

taxes  ?>r        over  every  species  of  taxable  property,  except  exports.     But  there 

are  two  rules  prescribed  for  their  government : — Uniformity,   and 

apportionment.     Duties,  imposts  and  excises  were  to  be  laid  by  tho 

22, 144, 145.   first  rule ;    and  capitation   and  other  direct  taxes  by  the  second. 

(Hylton  v.  The  United  States,  3  Dall.  171.)     1  Kent's  Com.  255. 

Define  uni-       Taxes   under   this   clause   must   be  uniform ;   but  need  not  bo 

form?  apportioned  according  to  census.     Idem.      Yet  "UNIFORM"  must 

mean  that  the  same  duties  shall  be  paid  at  all  the  ports  in  tho 

"  States  and  Territories,"  throughout  the  United  States ;  and  that 


01.1,2.]  BORROW  MONET,    82,    83,    84.  103 

the  same  income  taxes  and  excises  should  operate,  alike  including        91. 
the  District  of  Columbia.     Loughborough  v.  Blake,  5  Wheat.  317. 

The  Indian  tribes  are  not  included  in  the  excise  law.  91,  92. 

See  "  uniform  "  rule  of  naturalization.  93,  94. 

[2.]  To  borrow  money  on  the  credit  of  the  United  TO  borrow. 
States.  *  .. 

82.  As  first  reported  it  read:  "To  borrow  money  [and  emit        129« 
bills]  on  the  credit  of  the  United  States."     To  "emit  bills,"  waa         78. 
stricken  out,  after  debate,  on  the  ground,  that  "  on  the  credit,"  autho 
rized  the  issuing  of  bills  or  notes  by  the  government.     Metropo 
litan  Bank  v.  Van  Dyke,  27  N.  Y.  R.  420  ;  3  Madison  papers,  1343. 

§3.  MONET. — [Moneta.~\     Cash;  that  is,  gold  and  silver,  or  the  What  is 
lawful  circulating  medium  of  the  country,  including  bank  notes,  "M^y? 
when  they  are  known  and  approved  of  and  used  in  the  market  as  97, 9S,  129. 
cash.     (Co.  Litt.  207  a ;-  Lord  Ellenborough,  13   East  20 ;  Kent,  in 
Mann  v.  Mann,  1  Johns.  Ch.  R.  236.)     BurrilPs  Law  Die.  MONET. 
And  money  deposited  in  bank  ;  but  not  stocks.     Hotham  v.  Sutton, 
15  Ves.  319 ;  Mann  v.  Mann,  1  Johns.  Ch.  p.  257. 

For  the   necessity  of  this  power,  see  the  Federalist  No.  41 ; 
Story's  Const.  §  1065. 

Treasury  notes  have  been  issued  under  the  acts  of  25th  Feb.  Treasury 
1813,  26th  December,  1814,  12th  October,  1837,  31  January,  1842,  notes  on 
31  August  1842,  22  July,  1846,  28  July,  1847,  23  December,  1857,  Authority 
the   25th  February,  1862,  and  the  several  subsequent  acts.     They  issued? 
are  binding  on  the  government.     (Thorndyke  v.  The  United  States, 
2  Mason,  1,  18.)     Metropolitan  Bank  v.  Van  Dyck,  27  New  York, 
421.     Some  have  drawn  interest;  others  not;  they  all  circulate  as 
money.    And  see   the  Pennsylvania  Cases.      52   Penn.   St.  Rep. 
15-100. 

84.  The  United  States  bonds  and  indeed  all  the  public  securi-        78. 
ties  which  have  to  be  redeemed,  and  which  circulate  as  currency 
moy  properly  be  classified  as  money  borrowed,  or  rather  securities         22. 
given  for  money  borrowed  on  the  credit  of  the  United  States.    The 
bonds  issued  and  sold  in  market  are  technically  so. 

The  states  have  no  power  to  tax  the  loan  of  the  United  States.  Can  the 
Weston  v.  City  Council  of  Charleston,   2   Pet.  449-65  ;  Bank  of  ^J^S 
Commerce  v.  New  York,  2  Black,  G29.     The  Constitutional  Court  8ecuritics? 
of  South  Carolina,  in  May,  1823,  decided  in  favor  of  the  power  to 
tax  the  loan.     Judge  Huger  and  two  other  judges,  against  four, 
gave  an  opinion  against  the  constitutionality  of  the  law.     2  Pet.         22. 
452. 

The  sovereignty  of  a  state  extends  to  every  thing  which  exists 
by  its  own  authority,  or  is  introduced  by  its  permission,  but  not  to 
those  means  which  are  employed  by  Congress  to  carry  into  execu 
tion  powers  conferred  on  that  body  by  the  people  of  the  United 
States.  (Weston  v.  The  City  of  Charleston,  2  Pet.  449.)  Bank  of 
Commerce  v.  New  York,  2  Black,  632.  '-^/ 

This  power  is  supreme  within  its  scope  and  operation,  and  may 
be  exercised  free  and  unobstructed  by  state  legislation  or  authority. 


104  LEGAL  TENDER,    84.  [Art.  I,  Sec.  8, 

(McCulloeh  v.  The  State  of  Maryland,  4  Wh.  116;  Osborn  v.  The 
United  States,  9  Wh.  732,)  Bank  of  Commerce  v.  New  York  Citj, 
2  Black.  G32. 

Arc  treas-  For  the  history  of  this  section,  see  Metropolitan  Bank  v.  Van 
constitueS  a  D.yck'  27  N-  Y-  ReP-  419>  et  s&i'  The  Power  to  issue  notes  is  thus 
tiunrtl  legal  £'ven»  an(*  *no  convention  declined  to  prohibit  the  making  them  a 
tender?  °  legal  tender  in  payment  of  either  public  or  private  debts.  (Thorn - 
dyke  v.  United  States,  2  Mas.  1,  18).  Id.  And  after  a  full  review 
82,  83.  of  the  question  of  po\ver,  it  was  held  that  such  notes  may  consti 

tutionally  be  made  a  legal  tender  in  payment  of  all  debts  between 
97-100.          individuals.    Metropolitan  Bank  v.  Van  Dyck,  27  N.  Y.  451. 

Congress  has  constitutional  power  to  issue  treasury  notes  of  the 
United  States,  and  make  them  lawful  money,  and  a  legal  tender 
for  the  payment  of  debts.  Shollenberger  v.  Brinton,  52  Penn.  St. 
Kep.  (2  P.  F.  Smith)  9,100;  Brown  v.  Welch,  26  Ind.  116;  Thayer 
v.  Hedges,  23  Ind.  141  ;  Bank  of  Indiana  v.  Reynolds,  Law  Heg. 
1865.  (But  Contra,  Judge  Cadwalader.  Morrison  v.  Reading 
Railroad.)  Shollenberger  v.  Brinton,  52  Penn.  49. 

The  Act  of  Congress  of  Feb.  25,  1862,  authorizing  the  issue  of 
such  notes,  is  constitutional.  Shollenberger  v.  Brinton,  52  Penn- 
St.  Rep.  (2  P.  F.  Smith)  9^100  ;  Carpenter  v.  Northfield  Bank,  39 
Vt.  (4  Veasey)  49. 

Give  the  ex-     The  principal  sum  which  redeems  a  ground-rent,  is  a  "debt" 
ainples?        within  the  meaning  of  the  act.    Shollenberger  v.  Brinton,  52, 
Penn,  9,  100. 

A  ground-rent  payable  in  "  *  *  *  dollars,  lawful  silver  money  of 
the  United  States  of  America,"  is  redeemable  by  such  notes.    Id. 
155.  So  the  half-yearly  instalment  of  a  ground-rent,  payable  in  "  *  *  * 

dollars  lawful  silver  money  of  the  United  States,  each  dollar 
weighing  16  dwt.  6  gr.  at  least."  Mervin  v.  Sailor,  52  Penn.  St. 
Rep.  (2  P.  F.  Smith),  18,  45,  102. 

So  a  ground-rent  payable  in  "  lawful  money."  or  "lawful  money 
of  the  United  States."  Davis  v.  Burton,  52  Penn.  St.  Rep.  (2  P. 
F.  Smith)  22;  Kroener  v.  Calhoun,  52  Penn.  St.  Rep.  (2  P.  F. 
Smith)  24. 

So  a  certificate  of  deposit  of  "  *  *  *  gold,  payable  in  like  funds 
with  interest."  Sandford  v.  Hays,  52  Penn.  St.  Rep.  (2  P.  F. 
Smith)  26:  Warner  v.  Sank  Co.  Bank,  20  Wis.  494;  Warnibold  v. 
Schlicting,  16  Iowa,  243;  Breitenbach  v.  Turner,  18  Wis.  140. 

So  a  note  for  a  sum  of  money  marked  in  margin,  "$14,145  specie," 
which  by  banker's  rules,  meant  gold  or  silver  coin.  Graham  v 
Marshall,  52  Penn.  St.  Rep.  (2  P.  Smith)  28,  103 

So  a  note  for  "*  *  *  dollars  in  gold,"  Laughlin  v.  Harvey,  52 
Penn.  St.  Rep.  (2.  P.  F.  Smith)  30;  Wood  v.  Bullens,  6  Allen 
(Mass.)  516,  518. 

So,  "  or  if  paid  in  paper,  the  amount  thereof  necessary  to  pur 
chase  the  gold,  at  the  place  of  payment."  (Logansport  v.  Indiana) 
Brown  v.  Welch,  26  Ind.  1 16. 

The  condition  of  a  bond  for  payment  of  $3,000  "in  good  coins  of 
United  States,  of  a  particular  fineness,  notwithstanding  any  laws 
which  may  now,  or  hereafter  shall  make  any  thing  else  a  tender  in 


01.  3.]  TENDER,    COMMERCE  84-87.  105 

payment  of  debt.    Held,  not  payable  in  greenbacks.    Dutton  v. 
Pailant,  52  Penn.  St.  Rep.  (2  P.  F.  Smith)  109. 

"  When  treasury  notes  were  made  a  legal  tender  in  payment  of  97,  98. 
debts,  they  were  made  the  equivalent  of  coin  as  a  means  of  pay-         99. 
ment,  in  all  but  the  cases  excepted  by  law."    Brown  v.  Welch,  26 
lud.  117. 

The  outstanding  debt  of  the  United  States  for  borrowed  money         78. 
usually  called  the  loan,  see  note  78. 

[3.]  To  regulate  commerce  with  foreign  nations,  and  what  is  the 
among  the  several  States,  and  with  the  Indian  tribes,    commence?' 

a 

\J  85.  "To  REGULATE."     That  is,  to  prescribe  the  rule  by  which  HOW  to  reg- 
commerce  is  to  be  governed.     (Gibbons  v.  Ogden,  9  Wheat.  196.)  "late  corn- 
Story's  Const.  §  1061.  ""^i 

The  power  is  exclusive,  and  leaves  no  residuum.     (Gibbons  v.  79,  80. 
Ogden,  9  Wheat.  209.)     Story's  Const.  §  1072.     See  the  Passenger 
Cases,  7  How.  283. 

But  a  State  may  pass  police  laws  for  the  protection  of  its  inhabi 
tants  against  paupers.  This  is  not  a  regulation  of  commerce.  The 
city  of  New  York  v.  Miller,  12  Pet.  102,  132;  Story's  Const. 
§  1072  a. 

It  is  denied  that  the  power  "  to  REGULATE  "  is  exclusively  in  Con-         89. 
gress.    (The  License  Cases,  5  How.  504.)   Id.  §  1072.    And  license 
laws,  the  primary  object  of  which  is  to  secure  the  health  of  the  com 
munity.     The  License  Cases,  5  How.  504;  Story's  Const.  §  1072. 

86.  "COMMERCE "  is  traffic,  but  it  is  something  more ;  it  is  inter-  What  is 
course.     Gibbons  v.  Ogden,  9  Wheat.  191,  209.)     United  States  v.  commerce? 
Holliday,  3  Wallace.  417:  Story's  Const.  §  1061,  note  2. 

Buying,  selling,  and  exchanging  is  the  essence  of  commerce.     3 
Wall,  417.     It  also  includes  navigation,  as  well  as. traffic,  yfn   its     / 
ordinary  signiiication ;  and  embraces  ships  and  vessels  as  the'instru-y 
ments  of  intercourse  and  trade,  as  well  as  the  officer^  and  seamen 
who  navigate  and  control  them.    The  power  of  Congress  extends  to 
all  these  subjects.     People  v.  Brooks,  4  Denio,  469. 

For  the  necessity  of  this  power  see  the  Federalist,  BTos.  4,  7,  11. 
22.  37;  Gibbons  v.  Ogden,  9  Wheat.  225;  Brown  v.  Maryland,  12 
Wheat.  445,  446;  Story's  Const.  §§  1057,  1060. 

To  regulate  the  external  commerce  of  the  nation ^and  the  respec 
tive  states.     People  v.  Huntington,  4  N.  Y.  Leg.  Obs.  187.     The        196. 
whole  subject  fully  discussed.      Id.      But  not  to  declare  the  status  Can  Con- 
which  any  person  shall  sustain  while  in  any  State  of  the  Union.  ?rt-ss  <lc('^ro 
The  power   can  be  exercised   over  persons   as    passengers,  only  peon's  'in " 
while  on  the  ocean,  and  until  they  come  under  State  jurisdiction,  the  Suites? 
It  ceases  when  the  voyage  ends,  and  then  the  State  laws  control.  18, 196. 
Lemmon  v.  People,  26" Barb.  270;  affirmed,  20  M.  Y.  562. 

87.  "COMMERCE  WITH  FOREIGN  NATIONS"  means  commerce  be-  w th foreign 
tween  citizens  of  the  United  States  and  citizens  or  subjects  of  for-  nations, 
eign  governments,  as   individuals.     United  States   v.   Holliday,  3 
Wallace,  417  ;  Flannagau  v.  Philadelphia,  22  Penn.  219.     The  ercc-        281. 
tion  of  wharves  is  subservient  to  commerce.     SteVens  v.  Walker, 

15  La.  Ann.  577. 


106  COMMERCE,   87,   88.  [Art.  I.,  Sec.  8, 

The  giving  of  a  license  by  a  municipal  corporation  is  not  a  regu 
lation  of  commerce.  Childers  v.  People,  1 1  Mich.  43. 

The  violation  of  a  local  law  requiring  such  licenses,  by  the  use 
of  an  unlicensed  boat,  though  it  be  duly  licensed  for  the  coasting 
and  foreign  trade  under  the  laws  of  the  United  States,  is  a  punish 
able  offense.  Id. 

A  tax,  the  effect  of  which  is  to  diminish  personal  intercourse,  is 
a  tax  upon  commerce.  Linsing  v.  Washburn,  30  Cal.  634.  The 
California  tax-law  upon  Chinese  is  a  violation  of  this  section  and 
unconstitutional.  Id. 

"With  foreign  This  power,  like  all  others  vested  in  Congress,  is  complete  in  itself, 
"mon^tho^  ma^  ^e  exercised  to  its  utmost  extent,  and  acknowledges  no  limita- 
Beveral  "'  tions  other  than  are  prescribed  in  the  Constitution.  Gibbons  v. 
States?  Ogden,  9  Wh.  196.  Commerce  with  foreign  nations,  and  among  the 
several  States,  can  mean  nothing  more  than  intercourse  with  those 
nations,  and  among  those  States,  for  the  purposes  of  trade,  be  the 
object  of  trade  what  it  may;  and  this  intercourse  must  include  all 
the  means  by  which  it  can  be  carried  on,  whether  by  the  free  navi 
gation  of  the  waters  of  the  several  States,  or  by  a  passage  over  land 
through  the  States,  where  such  passage  becomes  necessary  to  the 
commercial  intercourse  between  the  States.  Corlield  v.  Coryell,  4 
Wash.  C.  C.  388 ;  Pennsylvania  v.  Wheeling  &  Belmont  Bridge  Co. 
18  How.  421;  Columbus  Ins.  Co.  v.  Peoria  Bridge  Co.  6  McLean,  70; 
Columbus  Insurance  Co.  v.  Curtenius,  Id.  209;  Jolly  v.  Terre  Haute 
Drawbridge  Co.  Id.  237 ;  United  States  v.  Railroad  Bridge  Co.  Id. 
518.  This  clause  confers  the  power  to  impose  embargoes.  Gib 
bons  v.  Ogden,  9  Wh.  191;  United  States  v.  The  William,  2  Hall's 
L.  J.  255,  272.  And  to  punish  crimes  upon  stranded  vessels.  Uni 
ted  States  v.  Coombs,  12  Pet.  72.  It  does  not,  however,  interfere 
with  the  right  of  the  several  States  to  enact  inspection,  quarantine, 
and  health  laws  of  every  description,  as  well  as  laws  for  regulating 
their  internal  commerce.  Gibbous  v.  Ogden,  9  Wh.  203;  New  York 
v.  Miln,  11  Pet.  102;  Conway  v.  Taylor,  1  Black.  633.  Nor  with 
their  power  to  regulate  pilots.  Cooley  v.  Board  of  Wardens,  12 
How.  299.  Or  to  protect  their  fisheries.  Smith  v.  Maryland,  18 
How.  71;  Dunham  v.  Lamphere,  3  Conn.  268. 

State  laws  88.  A  State  law  which  requires  the  masters  of  vessels  engaged 
\vnicii  vi«i-  in  foreign  commerce  to  pay  a  certain  sum  to  a  State  officer,  on  ac 
count  of  every  passenger  brought  from  a  foreign  country  into  the 
79.  State,  or  before  landing  any  alien  passenger  in  the  State,  conflicts 
with  the  Constitution  and  laws  of  the  United  States.  Smith  v.  Tur 
ner,  7  How.  263.  (This  decision  was  by  a  divided  court,  and  is  not 
conclusive  authority.  Smith  v.  Marston,  5  Tex.  432.)  So  does  a 
state  law,  authorizing  the  seizure  and  imprisonment  of  free  ne 
groes  brought  into  any  port  of  the  state,  on  board  of  any  vessel, 
from  any  state  or  foreign  port.  Elkison  v.  Deliesseline,  2  Wh.  Cr. 
Cas.  56;  1  Opin.  659.  (But  see  2  Opin.  426,  contra.}  And  so  does 
a  state  law  which  requires  an  importer  to  take  a  license,  and  pay 
fifty  dollars  before  he  should  be  permitted  to  sell  a  package  of  im 
ported  goods.  Brown  v.  Maryland,  12  Wh.  419.  Purvear  v.  Com 
monwealth,  5  Wall.  478.  But  a  State  law  which  imposes  a  tax  on 
brokers  dealing  in  foreign  exchange,  is  not  repugnant  to  this  clause 


Cl.  3.]  COMMERCE,  88,  89.  107 

of  the  Constitution.  Nathan  v.  Louisiana,  8  How.  73.  Nor  is  one 
imposing  a  tax  on  legacies  payable  to  aliens,  Mager  v.  Grima,  Id.  490. 
Nor  are  the  license  laws  of  certain  States,  forbidding  the  sale  of 
spirituous  liquors  under  less  than  certain  large  quantities.  Thurlow 
v.  Massachusetts,  5  How.  504:  The  State  v.  Allraond,  4  Am.  D.  R. 
533;  California  v.  Coleman,  4  CaL  467. 

§9.  "  AMONG  THE  SEVERAL  STATES.     This  section  quoted  with  What  is 
clause    18,  and    Art.  VL,  Sec.  2,  and   Art.  X.  of  Amendments,  commerce 
Oilman  v.  Philadelphia,  3  Wallace,  724.  J££J  tl1 

Commerce  includes  navigation ;  and  comprehends  the  control  for  States  ? 
that  purpose,  and  to  the  extent  necessary,  of  all  navigable  waters  138, 114,  274, 
of  the  United  States  which  are  accessible  from  a  State  other  than  o°-3'8T 
those  within  which  they  lie.     For  this  purpose  they  are  the  public     '     " 
property  of  the  nation,  and  subject  to  all  the  requisite  legislation  of 
Congress.     (Gibbons  v.  Ogden,  9  Wheat.  191 ;  Corneld  v.  Coryel,  4 
Wash.  C.  C.   R.  378.)     Gihnan  v.  Philadelphia,  3  Wallace,  724,  725. 

The  right  includes  the  power  to  remove  all  obstructions,  and  What  docs 
to  provide  for  the  punishment  of  offenders.     The  whole  powers  the  ri»ht  ia~ 
which   existed  in  the   States  before  the  adoption  of  the  Federal 
Constitution,  and  which  have  always  existed  in  the  Parliament  in         208. 
England.     Id. 

It  is  for  Congress  to  determine  when  its  full  powers  shall  be 
brought  into  activity,  and  as  to  the  regulations  and  sanctions  which 
shall  be  provided.  (United  States  v.  New  Bedford  Bridge,  1  Wood- 
bury  &  Minot,  420,  421;  United  States  v.  Coombs,  12  Peters.  72; 
New  York  v.  Milne,  11  Peters,  102,  155.)  Gilman  v.  Phila 
delphia,  3  Wallace,  725. 

Wherever  "  commerce  among  the  States  "  goes,  the  power  of  What  is  the 
the  nation,  as  represented  in  this  Court,  goes  with  it  to  protect  and  P°wer  <>f  th« 
enforce  its  rights.     (Gibbons  v.  Ogden,  9  Wheat.  191;  Steamboat  v.  court'to  en- 
Livingston,  3  Cowen.  713.)     Gilman  v.  Philadelphia,  3   Wallace,  force  the 
725.  right? 

The  National  Government  possesses  no  powers  but  such  as  have  What  are  tho 
been  delegated  to  it  by  the  States,  which  retain  all  but  such  as  they  j^Tu^u'd 
have  surrendered.     The   power  to   authorize   the   building  of  a  states'?  *" 
bridge  is  not  to  be  found  in  the  Federal  Constitution.     It  has  not  7^  13^  269. 
been  taken  from  the  States.     Id.    When  the  Revolution  took  place 
the  people  of  each  State  became  themselves  sovereign,  and  hi  that  2,  6. 
character  hold  the  absolute  right  to  all  their  navigable  waters  and 
the  soil  under  them  for  their  own  common  use,  subject  only  to  the 
rights  since  surrendered  by  the  Constitution  to  the  general  govern 
ment    (Martin  v.  Waddell,  16  Peters.  410.)   Gitmau  v.  Philadelphia, 
3  Wallace,  726.     Ante  Preface,  pp.  viii ,  ix.     The  right  of  eminent  Eminent  do- 
domain  over  the  shores  and  the  soil  under  the  navigable  waters,  for tnain  '• 
all  municipal  purposes,  belongs  exclusively  to  the  States  within  their 
territorial  jurisdiction,  and  they  only  have  the  power  to  ezercise 
it.     Id. 

But  this  right  can  never  be  used  to  affect  the  exercise  of  any  Can  the 
national  right  of  eminent  domain  or  jurisdiction  with  which  the  States  use  a 
United  States  have  been  invested  by  the  Constitution.    (Pollard's  jJS'j 
lessee  v.  Hogau,  3  Howard,  230.)    Gilman  v.    Philadelphia,  3  Wai-    " 
lace,  726. 


108  COMMENCE,   89,    90.  [Art.  L,  Sec.  8, 

What  sub-         Inspection  laws,  quarantine  laws,  health  laws  of  every  descrip- 
joc'tsuiv.  un-  tion,  as  well  as  laws  for  regulating  the  internal  commerce  of  a 
control?        Stale,  arid  those  which  respect  turn-pike  roads,  ferries,  &c.,  are 
component  parts  of  the  powers  of  a  State.     (Gibbons  v.  Ogden, 
9  Wheat.  192)  Gilman  v.  Philadelphia,  3  Wallace,  726.     And  also 
bridges.     (People  v.  S.  &  R.  K.  R.  Co.,  15  Wend.  113.)    Id. 
Pilot  lawa  ?       Pilot  laws  enacted  in  good  faith  are  within  the  powers  of  the 
States.     (Cooly  v.  The  Board  of  Wardens,  12  Howard,  319.)     Gil 
man  v.  Philadelphia,  3  Wallace,  727.     Master  v.  "Ward,  14  La.  A. 
289  ;  Master  v.  Morgan,  14  Ib.  595. 

When  is  a         But  where  Congress  has  acted  the  law  is  paramount.    (Pennsyl- 
^LS?"™1*  v>  Vil¥mia>  18  Howard,  430.)     Gilman  v.  Philadelphia,  3 
fiiouut?ira~    Wallace,  727,  729.    Until  Congress  has  exercised  the  power,  the 
State  may  authorize  obstructions  which  do  not  violate  the  Consti 
tution.    (Wilson  v.  Blackbird  Creek  Marsh  Co.  2  Peters,  250.)    Id. 
727-729. 

When  may  The  States  may  exercise  concurrent  or  independent  power  in  all 
the  States  cases  but  three  :  1.  Where  the  power  is  lodged  exclusively  in  the 
l-ul-renTpo0^  Federal  Constitution.  2.  Where  it  is  given  to  the  United  States 
era?  and  prohibited  to  the  States.  3.  Where  from  the  nature  and  sub 

jects  of  the  power,  it  must  be  necessarily  exercised  by  the  National 
Government   exclusively.      (Houston  v.  Moore,   12  Wheat.    419; 
Federalist  No.  32.)    Gilman  v.  Philadelphia,  3  Wallace,  730. 
What  laws        A  State  law  requiring  an  importer  to  take  out  a  license  before  he 
or  a  State  are  ailan  aen  a  baie  of  goocjg  jg  Void.     (Brown  v.  Maryland,  12  Wheat. 
419.)      Gilman  v.  Philadelphia,  3  Wallace,  730.     Purvear  v.  Com 
monwealth,  5  Wall.  478.     So   the   passenger   laws   from   foreign 
countries.    (Passenger's  Cases,  7  Howard,  273.)     Gilman  v.  Phila 
delphia.  3  Wall.  730.      Not  so  of  the  State  liquor-license  laws. 
(License  cases,  5  Howard,  504.)     Gilman  v.  Philadelphia,  3  Wallace 
730.      Purvear  v.  Commonwealth,  5  Wall.  498.      Congress   may 
Bridges  ?       regulate  all  bridges  over  navigable  waters,  remove  offending  bridges, 

and  punish  those  who  shall  thereafter  erect  them.     Id.  731. 
Where  does      The  power  to  regulate  commerce  docs  not  stop  at  the  jurisdiction 
power  of       or  iimitg  of  tne  several  States.     (Gibbons  v.  Ogden,  9  Wheat.  190.) 
it"")"?™8'   °l  United  States  v.  Holliday,  3  Wallace,  417. 

What  were        90.  As  to  the  power  of  Congress  over  the  subject  of  commerce 
the  powers  ^  amOng  the  several  States,  see  the  Opinion  of  McLean,  J.,  in  Groves 
Sl  v.  Slaughter,  15  Pet.  504;  Taney,  Ch.  J.,  Id.  508;  Baldwin,  J.,  Id. 
510.     In  Shelton  v.  Marshall,  16  Tex.  :^52,  Wheeler,  J.,  said:— As 
respects  the  power  of  the  States  over  the ;  ubject  of  the  Constitutional 
inhibitions  in  question  (the  introduction  of  slaves  as  merchandise), 
what  we  deem  the  sound  and  correct  doctrine  was  stated  by  Chief- 
Justice  Taney,  in  Groves  v.  Slaughter,  15  Pet.  508,  viz.: — 

"In  my  judgment,  the  power  over  this  subject  is  exclusively 
with  the  several  States:  and  each  of  them  has  a  right  to  decide  for 
itself,  whether  it  will  or  will  not  allow  persons  of  this  description  to 
be  brought  within  its  limits,  from  another  State,  either  for  sale  or 
for  any  other  purpose  ;  and  also  to  prescribe  the  manner  and  rnodo 
in  which  they  may  be  introduced,  and  to  determine  their  condition 
and  treatment  within  their  respective  territories ;  and  the  action  of 
the  several  States  upon  this  subject  cannot  be  controlled  by  Con- 


01.3.]  COMMERCE,    90,    91.  109 

gress,  either  by  virtue  of  its  power  to  regulate  commerce,  or  by 
virtue  of  any  other  power  conferred  by  the  Constitution  of  the 
United  States." 

Congress  may  have  power  to  prevent  the  obstruction  of  any  Navigable 
navigable  stream  which  is  a  means  of  commerce  between  any  two  streams? 
or  more  States.     Works  v.  Junction  Railroad,  5  McLean,   526 ; 
Jolly  v.  Terre  Haute  Drawbridge  Co.  6  Id.  237  ;  Devoe  v.  Penrose 
Ferry  Bridge  Co.  3  Am.  L.  J.  19.     But  a  State  law  granting  the  ex-        203. 
elusive  privilege  of  navigating  a  part  of  an  unnavigable  stream, 
which  is  wholly  within  the  State,  on  condition  of  rendering  such 
part  navigable,  is  not  repugnant  to  the  Constitution.     Veazie  v. 
Moore,  14  How.  568.     And  see  Wilson  v.  Blackbird  Creek  Marsh 
Co.  2  Pet.  251. 

91.  If  commerce  or  traffic  or  intercourse  be  carried  on  with  an  With  the  In- 
Indian  tribe,  or  with  a  member  of  such  tribe,  it  is  subject  to  be  dian  tribes? 
regulated  by  Congress,  although  within  the  limits  of  a  State.     The  JJjJ^Jf  $* 
power  is  absolute,  without  reference  to  the  locality  of  the  tribe  or  tribe  cause  a 
the  member  of  the  tribe.     United  States  v.  Holliday,  3  Wallace,  (inference  ? 
418.     This    power   is  not   claimed   as    to   any   other   commerce 
originated  and   ended   within  the  limits  of   a  single  State.     Id. 
So  long  as  the  tribal  relations  exist,  the  Indians  who  are  con 
nected  with  their  tribes  and  under  the  jurisdiction  of  an  agent,  are 
under  the  protection  of  the  laws  to  regulate  trade  and  intercourse 
with  the  Indians.     Id.     The  States  cannot  control  the  subject.    Id. 

Under  the  power  to  regulate  commerce  with  the  Indian  tribes, 
Congress  has  power  to  prohibit  all  intercourse  with  them,  except 
under  a  license.  United  States  v.  Cisna,  1  McLean,  254.  So  Con 
gress  has  power  to  punish  all  crimes  committed  within  the  Indian 
country,  which  was  a  part  of  the  Louisiana  territory,  dedicated  to 
the  Indians.  The  United  States  v.  Rogers,  4  How.  567. 

The  United  States  has  adopted  the  principle  originally  estab-  What  is  the 
lished  by  European  nations,  namely,  that  the  aboriginal  tribes  of  Jj}j£JJjL 
Indians  in  North  America  are  not  regarded  as  the  owners  of  the  Of  sou? 
territories  which  they  respectively  occupied.     Their  country  was 
divided  and  parceled  out,  as  if  it  had  been  vacant  and  unoccupied 
land.    Id.    If  the  propriety  of  exercising  this  power  were  now  an 
open  question,  it  would  be  one  for  the  law-making  and  political 
department  of  the  government,  and  not  the  judicial      Id. 

The  Indian  tribes  residing  within  the  territorial  limits  of  the  196. 
United  States,  are  subject  to  their  authority ;  and  where  the 
country  occupied  by  them  is  not  within  the  limits  of  any  one  of  the 
States,  Congress  may  by  law,  punish  any  offence  committed  there, 
no  matter  whether  the  offender  be  a  white  man  or  an  Indian.  Id. ; 
The  United  States  v.  Rogers,  4  How.  567. 

The  25th  section  of  the  act  of  30th  June,  1834,  extends  the  laws  Intercourse 
of  the  United  States  over  the  Indian  country,  with  a  proviso  that luw  ? 
they  shall  not  include  punishment  for  •'  crimes  committed  by  one 
Indian  against  the  person  or  property  of  another  Indian."  Id.  This 
exception  does  not  embrace  the  case  of  a  white  man  who,  at  mature 
age,  is  adopted  into  an  Indian  tribe.  He  is  not  an  "  Indian  "  within 
the  meaning  of  the  law.     Id.  4  St.  729;   1  Brightly's  Dig,  430,  § 
75 ;  4  Op.  72,  United  States  v.  Rogers,  4  How,  567. 


110  COMMERCE,    91.  [Art.  I.,  Sec.  8, 

The  treaty  with  the  Cherokees,  concluded  at  New  Echota,  in 
1835  allows  the  Indian  council  to  make  laws  for  their  own  people, 
or  such  persons  as  have  connected  themselves  with  them.  But  it 
also  provides  that  such  laws  shall  not  be  inconsistent  with  acts  of 
Congress.  The  act  of  1834,  therefore,  controls  and  explains  the 
treaty.  It  results  from  these  principles,  that  a  plea,  set  up  by 
a  white  man,  alleging  that  he  had  been  adopted  by  an  Indian  tribe, 
and  was  not  subject  to  the  jurisdiction  of  the  circuit  court  of  the 
United  States,  is  not  valid.  Id. 

What  means      Commerce  with  the  Indian  tribes,  means  commerce  with  the  indi- 
1     viduals  composing  those  tribes.     United  States  v.  Holliday,  3  Wal 
lace,  417. 

The  cotton  grown  in  the  Indian  country  and  shipped  to  ports  of 
the  United  States  for  sale,  is  not  subject  to  the  Internal  revenue 
tax  levied  by  the  statutes  of  the  30th  June,  1864,  and  the  I3th 
July,  1866.  "The  case  of  R.  M.  Jones.  Attorney-General,  II.  Stari- 
bery's  opinion,  of  24th  July,  1867.  The  acts  reviewed.  Id. 

All  these  provisions  fortify  the  conclusion  at  which  I  have 
arrived,  that  cotton  produced  in  the  Choctavv  nation  does  not  come 
within  their  operation.  A  tax  on  cotton  produced  there  or  manu 
factured  there,  or  sold  there,  cannot  be  levied,  assessed  or  collected 
under  the  provisions  of  these  acts.  Nor  is  there  any  thing  in  these 
acts  to  forbid  its  removal  or  sale"  to  any  part  of  the  United  States. 
Being  a  production  of  the  Indian  country  by  express  statutory 
enactment,  it  is  not  liable  to  any  import  or  transit  duty.  There  is 
no  lien  upon  it  for  any  tax  at  the  place  of  production,  nor  is  any 
permit  for  its  removal  necessary.  "I  am  clearly  satisfied  that  the 
omission  in  the  various  Internal  revenue  laws,  to  provide  for  the 
organization  of  collection  districts  over  the  Indian  territory  was  not 
fortuitous  or  accidental,  and  that  it  was  the  settled  purpose  of 
Congress  not  to  subject  the  persons  or  the  productions  of  Indians 
existing  under  their  regular  tribal  associations,  to  liability  for  any 
tax  imposed  by  these  acts. — If  the  provisions  as  to  the  specific 
article  of  cotton  apply  to  Indian  territory,  I  see  no  reason  why  all 
the  other  forms  of  tax  provided  for  in  these  acts  are  not  equally 
applicable  to  Indian  territory.  We  must,  consequently  make  them 
subject  to  taxation  in  reference  to  stamps,  income,  and  descents  in 
succession,  as  well  as  for  other  purposes.  The  intent  of  Congress 
not  to  include  them  in  any  sort  of  taxation,  I  think  is  clear  enough 
from  the  language  of  the  acts  themselves.  But  all  other  considera 
tions  which  apply  to  them,  equally  forbid  this  idea  of  Federal 
taxation.  Their  rights  are  defined  by  independent  treaties.  They 
arc  in  a  state  of  tutelage  and  protection  under  the  United  States. 
Laws  in  which  they  are  not  mentioned,  are  never  understood  to 
apply  to  them.  Even  when  these  Indians  and  their  territory  are 
situated  within  the  bounds  of  a  State  of  the  Union,  they  are  not 
subject  to  State  taxation.  In  recent  cases  before  the  supreme 
court  of  the  United  States,  at  its  December  term,  18(56,  speaking  of 
the  condition  of  the  Indian  tribes  under  treaty  with  the  United 
States,  it  used  this  language:  'The  object  of  the  treaty  was  to 
hedge  the  lands  around  with  guards  and  restrictions,  so  as  to 
preserve  them  for  the  permanent  homes  of  the  Indians.  In  order 


01.  3.]  INDIAN  TRIBES,   91,    92.  Ill 

to  accomplish  this  object  they  must  be  relieved  from  every  species 
of  levy,  sale,  and  forfeiture — from  a  levy  and  sale  for  taxes,  as  well 
as  the  ordinary  judicial  levy  and  sale.'  The  Kansas  Indians,  5 
Wall.  760,  761.  Again  the  Courts  say,  in  reference  to  the 
tribal  association  of  the  Shawnees,  that  Tthey  are  a  people 
distinct  from  others,  capable  of  making  treaties,  separated 
from  the  jurisdiction  of  Kansas,  and  to  be  governed  exclusively  by 
the  government  of  the  Union.  If  under  the  control  of  Congress, 
from  necessity,  there  can  be  no  divided  authority. — If  they  have 
outlived  manv  things  they  have  not  outlived  the  protection  afforded 
by  the  Constitution,  treaties,  and  laws  of  Congress. — It  may  be 
that  they  cannot  exist  much  longer  as  a  distinct  people  in  the  pre 
sence  of  the  civilization  of  Kansas  ;  but  until  they  are  clothed  with 
the  rights  and  bound  to  all  the  duties  of  citizens,  they  enjoy  the 
privilege  of  total  immunity  from  State  taxation.'  (Id.  755,  750). 
And  again : — '  As  long  as  the  United  States  recognizes  their 
national  character  they  are  under  the  protection  of  the  treaties  and 
the  laws  of  Congress,  and  their  property  is  withdrawn  from  the 
operation  of  State  laws.'  (Id.  757.)  Such  is  the  well-established 
policy  of  the  United  States  with  regard  to  the  total  exemption  of 
the  Indian  tribes  from  State  taxation.  The  tenor  of  all  the  treaties 
shows  that  the  idea  of  subjecting  them  to  taxation  by  the  General 
Government,  was  never  entertained,  and  certainly  hitherto  it  has 
never  been  attempted.  I  am,  therefore,  clearly  of  opinion  that  the 
particular  cotton  in  question  was  not  liable  to  taxation  under  our 
Internal  revenue  laws,  either  while  in  the  Indian  country  or  in 
transit  through  any  collection  district  of  the  United  States,  or  in  the 
collection  district  where  it  may  have  been  found  or  may  have  been 
sold.  Until  the  Indians  have  sold  their  lands,  and  removed  from 
them  in  pursuance  of  the  treaty  stipulations,  •  they  are  to  be  re 
garded  as  still  in  their  ancient  possessions,  and  are  in  under  their 
original  rights,  and  entitled  to  the  undisturbed  enjoyment  of  them. 
(Fellows  v.  Blacksmith,  19  How.  366.)  The  New  York  Indians,  5 
Wall,  770." 

In  the  argument  of  the  case  of  R.  M.  Jones  before  the  Attorney- 
General,  the  Editor,  who  prosecuted  the  claim  to  have  the  tax, 
illegally  collected,  refunded,  cited  the  following  authorities :  The 
State  v.  Ross,  7  Yerg.  74;  United  States  v.  Cisna,  1  McLean,  254; 
Cherokee  Nation  v.  Georgia;  Worcester  v.  Georgia;  and  Johnson  v. 
Mclntosh,  cited  elsewhere  in  this  note.  And  the  following  cases 
to  show  that  while  Indians  reside  within  the  States  as  portions 
of  tribes,  they  are  not  within  State  jurisdiction,  as  citizens  subject 
to  the  burdens  and  benefits  of  State  laws:  Danforth  v.  Wear.  9 
•Wheat.  673;  Lee  v.  Glover,  8  Cow.  189;  Strong  v.  Waterman,  11 
Paige,  807;  Harmon  v.  Partier,  12  Sin.  &  Marsh.  425;  Marsh  v. 
Brooks,  8  How.  223;  Fellows  v.  Lee,  3  Denio  628;  Wall  v.  Wil 
liams,  8  Ala.  48  and  11  Ala.  826;  Brashear  v.  Williamson,  10 
Ala.  630;  Parks  v.  Ross,  11  How.  427  ;  Jones  v.  Laney,  2  Tex.  342. 
And  as  to  the  power  of  the  United  States  over  the  Indian  country, 
See  United  States  v.  Rogers,  4  Howard,  567.  Whatarethe 

92.  These  various  authorities  settle  the  general  propositions:  [hlTl'mi'iaii1 
1.    That  the  Indian  tribes  are  dependent  subordinate  States,  tribes? 


112  INDIANS-KATURALIZATION,  92,  93.  [Art.  I.,  Sec.  8, 

whose  political  relations  with  the  United  States  are  defined  by 
treaties. 

2.  That  "  commerce  with  the  Indian  tribes "  is  subject  to  the 
exclusive  control  of  Congress,  and  it  has  only  been  regulated  by 
treaties  and  intercourse  laws. 

81.  3.    That  Indians  are  not  embraced  by  acts  of  Congress,  unless 

they  be  named  therein.     Opinion  of  Judge  Lewis,  Commissioner  of 
Internal  Revenue,  1863. 

And  see  9  Op.  27.  The  Indians  owe  no  allegiance  to  the  United 
States.  They  may  make  war  upon  them  without  incurring  the 
guilt  of  treason.  Op.  of  Judge  Lewis,  Commissioner  of  Internal 
Revenue.  "  Though  he  holds  his  lands  within  the  limits  of  the 
United  States,  he  is  not  politically  within  its  limits,  nor  has  it  juris 
diction  over  him."  Judge  Lewis.  The  stamp  tax  does  not  apply 
to  the  Indian  reservations,  when  sold  by  the  tribe ;  nor  does  any 
part  of  the  laws  in  relation  to  Internal  Revenue.  Id.  The  court 
follows  the  executive  as  to  the  recognition  of  the  tribal  relations. 
Id.  Cites  The  Cherokee  Nation  v.  Georgia,  5  Peters,  1,  and  Wor 
cester  v.  Georgia,  6  Peters,  515. 

what  as  to  [4.]  To  establish  a  uniform  rule  of  naturalization ; 
itoaf  and  uniform  laws  on  the  subject  of  bankruptcies 
Bankruptcy?  throughout  the  United  States. 

What  is  nat-     93.  NATURALIZATION. — In  its  popular,  etymological,  and  legal 
unilizutiun  ?  sense,  signifies  the  act  of  adopting  a  foreigner  and  clothing  him 
with  all  the  privileges  of  a  native  citizen  or  subject.     9  Op.  359 ; 
Coke  Litt.  199a  ;  1  Bl.  Com.  374 ;  2  Kent's  Com.  64-67.    These  laws 
are  based  upon  the  acknowledged  principle  of  expatriation.    Bates 
17,   IS,   205,  on  Citizenship,  13.     A  naturalized  citizen  becomes  a  member  of 
2W.  society,  possessing  all  the  rights  of  a  native  citizen,  and  standing 

"What  is  ex-  oa  the  footing  of  a  native.      The  power  is  to  prescribe  a  "  uniform 
?    rule,"  and  the  exercise  of  this  power  exhausts  it,  so  far  as  respects 
274         the  individual.       The  Constitution  then  takes  him  up,  &c.     Osborn 
v.  Bank  of  United  States,  9  "Wh.  827.    Expatriation  includes  not 
only  emigration  out  of  one's  native  country,  but  naturalization  in 
220,  221,  222.  the  country  adopted  as  a  future  residence.     9  Op.  359  ;  8  Op.  125  ; 
Paschal's  Annotated  Digest,  p.  920,  note  11G8,  where  the  authori 
ties  are  collected ;  Halleck's  International  Law  696  ;  Rawle's  Const. 
95-101  ;  Sergeant's  Const,  ch.  28,  30  ;  2  Kent's  Com.  35,  42.     The 
naturalized  foreigner  is  protected  against  the  conscript  laws  of  his 
native  sovereign.     Ernest's  Case,  9th  Op.  357-363.    The  power  to 
Is  the  power  naturalize  is  exclusive  in  the  Federal  government.    The  Federalist, 
exclusive?     Xo.  32,  42;  Chirac  v.  Chirac,  2  Wheat.  259,  269;  Rawle's  Const. 
84-88 ;  Houston  v.  Moore,  5  Wheat.  48,  49 ;  Golden  v.  Prince,  3 
Wash.  C.  C.  R.  313,  332;  1  Kent's  Com.  397.)    Story's  Const.  § 
1104;  Thurlow  v.  Massachusetts,  5   How.  505;  Smithy.  Turner, 
7  How.  556.     The  power  must  be  exclusive  or  there  could  be  no 
Where  alone  « UNIFORM     RULE."      (Federalist,    No.    32;)    Story's   Const.    1104. 
!jnatufalier  Wnile  the  Constitution  gave  to  the  citizens  of   each    State  the 
zation  ?         privileges  and  immunities  of  citizens  in  the  several  States,  it,  at 
120-123.        the  same  time,  took  from  the  several  States  the  power  of  naturali- 


€1.4.]         NATURALIZATION-BANKRUPTCY,   93,    94.         113 

zation,  and  confined  that  power  exclusively  to  the  Federal  govern 
ment     The  right  of  naturalization  was,  therefore,  with  one  accord, 
surrendered  by  the  States,  and  confined  to  the  Federal  government. 
Golden  v.  Prince,  3  Wash.  c.  c.  314.     Naturalization  is  confined  to         90. 
persons  born  in  foreign  countries.    Scott  v.  Sandford,  19  How.  417- 
419.     The   Constitution  has  conferred  on  Congress  the  right  to  220, 17, 18. 
establish  uniform  rules  of  naturalization,  and  this  right  is  evidently 
exclusive.     Id.   405.     Negroes  cannot  be  naturalized.     Id.     And  Negroes, 
no  law  of  a  State,  passed  since  the  Constitution  was  adopted,  can        274. 
give  any  right  of  citizenship  outside  of  its  own  territory.     Id.     The       209- 
naturalization  law  of  1790,  only  extended  the  privilege  "to  aliens 
being  free  white  persons."     Id.      Citizenship  at  that  time  was  per 
fectly  understood  to  be  confined  to  the  white  race.     Id.     Congress 
might  have  authorized  the  naturalization  of  Indians,  because  they  Indians, 
were  aliens  and  foreigners.     Id.  420.     For  the  latest  collection  of 
the  naturalization  laws  and  notes  thereon,  see  Paschal's  Anno-  91, 92, 220. 
tated  Digest,    arts.    5392-5412;  notes    1168-1172,    and  148-150. 
A  free  white  person  born  in  this  country,  of  foreign  parents,  is 
a  citizen  of  the  United  States.     (Lynch  v.  Clarke,  1  Sandford's  Ch. 
R.  583.)     9  Op.  374.     This  is  a  universal  principle  unless  changed 
by  statute,  as  in  our  own  statute  to  prevent  the  alienage  of  chil 
dren  born  abroad.    10  St.  604.     Bates  on  Citizenship,  13. 

Allegiance  on  the  one  side,  and  protection  on  tho  other,  con-  Who  are  cit- 
stitute  citizenship  under  the  Constitution.     Smith  v.   Moody,  26izens? 
Inda.  305.    Allegiance  and  protection  constitute  the  sum  of  the  220-223. 
duties  and  rights  of  a  "  natural  born  citizen  of  the  United  States."  Whataretho 
Bates  on  Citizenship,  15.     Citizenship  cannot  depend  on  color  or 
caste.    Id.    14-17.     Alienage   is  the   only  disability  to  citizenship 
recognized  in  the  Constitution.     Id. 

94.  UNIFORM  SYSTEM  OF  BANKRUPTCY. — BANKRUPT  [banJce-  What  is  a 
rout].  Literally  from  Law  French  banke,  Lat.  bancus,  a  bench,  bankrupt? 
table,  or  counter,  and  roupt  or  rout,  Latin  ruptus,  broken.  One  95 
whose  bench  or  counter  (place  of  business)  is  broken  up.  In 
English  law,  a  trader  who  secretes  himself,  or  does  certain  other 
acts  tending  to  defraud  his  creditors.  2  Bl.  Com.  285,  471;  Bur- 
rill's  Law  Die.  BANKRUPT;  4  Inst.  Ch.  63  ;  Story's  Const.  §  1112; 
Cooke's  Bankrupt  Laws,  Intr.  1.  It  is  derived  from  the  Roman 
law.  Idem.  See  Ogden  v.  Saunders,  12  Wheat.  2G4-270;  Sturgis 
v.  Crowninshield,  12  Wheat.  273,  275,  280,  306,  310,  314,  335,  369; 
and  same  case  4  Wheat.  122.  By  the  American  law,  bankrupts 
and  bankruptcies  are  not  confined  to  traders.  See  Acts  of  April 
4,  1800;  December  19,  1803;  Aug.  19,  1841;  2  March,  1867; 
James's  Bankrupt  Law,  1867,  and  notes  ;  Taylor's  Bankrupt  Law  ; 
2  Kent's  Com.  390;  2  Story's  Const.  §§  1111-1115;  Stephens's 
Com.  180,  189.  The  leading  features  of  "  a  system  established  by 
law,  as  distinguished  from  ordinary  law  are,  (1),  the  summary  and 
immediate  seizure  of  all  the  debtor's  property  (or  the  voluntary 
surrender  of  it) ;  (2),  the  distribution  of  it  among  the  creditors  in 
general;  and  (3),  the  discharge  of  the  debtor  from  future  liability 
from  debts  then  existing."  Arcbbold's  Law  and  P.  of  Bankruptcy 
(llth  ecu  b.  2,  pp.  139,  235-237;  2  Burr.  829.  The  American 
"SYSTEM"  seems  to  have  broken  down  the  distinction  between 


114 


BAKKKUPTCY,   95,   96.  [Art.  I.,  Sec.  8, 


"  BANKRUPTCY  "  and  insolvency.  Burrill's  Law  Die.,  BANKRUPT. 
Sturgis  v.  Crowninshield,  4  Wheat.  122,  194,  193,  203;  2  Kent's 
Com.  321. 

What  is  95.  BANKRUPTCY. — The  act,  state,  or  condition  of  a  bankrupt. 

bankruptcy?  j±  status  or  condition  fixed  by  legislative  provision.  (2  Bell's  Com. 
94»  214.)  A  condition  following  upon  the  commission  of  certain  acts 

defined  by  law.  (2  Stephens's  Com.  191,  192;  Williamson  v. 
Barrett,  13  How.  111.  "A  breaking  up  of  the  bank."  Spencer  v. 
Billing,  3  Camp.  312.)  In  a  looser  sense,  the  stopping  and  break 
ing  up  of  business,  because  a  man  is  insolvent,  and  utterly  incapa 
ble  of  carrying  it  on.  (Arnold  v.  Maynard,  2  Story's  R.  354, 
359.  See  Sturgis  v.  Crowninshield,  4  Wheat.  122,  195,  202).  Bur- 
rill's  Law  Die.  BANKRUPTCY.  The  state  of  a  man  unable  to  pursue 
his  business,  and  meet  his  engagements,  in  consequence  of  the  de 
rangement  of  his  affairs.  Crabbe's  Rep.  456,  465.  See  Paschal's 
Annotated  Digest,  BANKRUPTCY,  note  278,  p.  141. 


What  right 
have  the 
States  to 
puss  bank 
rupt  laws  ? 


How  far  d- 
state  bank 
rtipt  laws 
discharge 
debts? 


Money. 


96.  The  States  have  authority  to  pass  bankrupt  laws,  provided 
they  do  not  impair  the  obligation  of  contracts,  and  provided  there  be 
no  act  of  Congress  in  force  to  establish  a  uniform  system  of  bank 
ruptcy  conflicting  with  such  laws.  Sturgis  v.  Crowninshield,  4  Wh. 
132,  273,  275,  280,  306,  314,  335,  369;  McMillan  v.  McNeil,  Id.  209. 
But  an  act  of  a  State  legislature  which  discharges  a  debtor  from  all 
liability  for  debts  contracted  previous  to  his  discharge,  on  his  sur 
rendering  his  property  for  the  benefit  of  his  creditors,  is  invalid,  so 
far  as  it  attempts  to  discharge,  on  the  contracts  with  his  credit 
ors  in  other  States  than  his  residence.  Farmers  &  Mechanics'  Bank 
v.  Smith,  6  Wh.  131.  A  mere  insolvent  law,  however,  is  not  within 
the  prohibition.  Ogden  v.  Saunders,  12  Wheat.  213,  Mason  v. 
Haile,  Id.  370 ;  Boyle  v.  Zacharie,  6  Pet.  348,  635 ;  Beers  v.  Hough- 
ron,  8  Id.  329;  Suydam  v.  Broadnax,  14  Id.  67;  Cook  v.  Moffat,  5 
'•low.  295.  The  State  bankrupt  laws  do  not  discharge  debts  con 
tracted  to  citizens  of  other  States,  unless  the  contract  be  payable 
within  the  state  of  the  bankrupt.  Beers  v.  Rhea,  5  Tex.  354.  This 
opinion  reviews  the  various  decisions  of  the  supreme  court  of  the 
United  States  upon  the  subject,  and  concurs  with  their  judgments, 
though  it  is  urged  that  the  opinions  have  been  inconsistent. 
See  Story's  Conflict  of  Laws,  §  338-423.  The  reason  of  this 
power  is  to  prevent  frauds  where  the  parties  or  their  property 
may  be  removed  into  different  States.  (The  Federalist,  No.  32.) 
Story's  Const.  §  1105. 

The  Bankrupt  Law  of  1841  was  held  to  be  constitutional.  Klein's 
Case,  1  How.  277.  The  power  of  Congress  is  not  an  exclusive  grant; 
it  may,  therefore,  be  exercised  within  constitutional  limits  by  the 
States.  Sturgis  v.  Crowninshield,  4  Wheat.  122.  See  James's  Bank 
rupt  Law,  p.  8.  This  book  gives  the  Bankrupt  Law  of  1S67,  anno 
tated. 

[5.]  To  coin  money,  regulate  the  value  thereof,  and 
of  foreign  coin;  and  fix  the  standard  of  weights  and 
measures. 


Cl.  5.]  TO   COIN  MONEY,    97-99.  115 

97.  To  COIN. — To  stamp  and  convert  into  money,  as  a  piece  of  What  is 
metal ;  to  mint;  in  a  more  general  sense,  to  form  by  stamping ;  as,  coin? 
to  coin  a  medal.     2.  To  make  or  fabricate ;  to  invent ;  to  originate ; 
as,  to  coin  a  word.     Webster's  Die.,  COIN. 

"To  COIN  MONET,"  clearly  means  to  mould  into  form  a  metallic  What  to 
substance  of  intrinsic  value,  and  stamp  on  it  its  legal  value.     The 
thing  so  coi'ied  is  itself  "  money,  ipxe  loquiter ;  but  a  treasury  note 
is  only  a  promise  to  pay  money,  and  at  the  utmost,  can  only  be, 
like  a  bank  bill,  or  a  bill  of  exchange,  a  representative  of  money.        155. 
Griswold  v.  Hepburn,  2  Duvall's  Ky.  Rep.  29.     The  phrase  means 
"  to  coin  metal  as  the  money  of  the  United  States  "    "They  intend 
ed  that  nothing  else  than  metallic  coin  should  be  money,  or  be  a 
legal  tender,  immutum,  as  money.     Id.  33,  34.     "  Currency  "  is  not 
money.    Id.  33,  46,  47. 

The  articles  of  confederation  read  "To  coin  money  and  emit 
bills  of  credit."  (Ante,  Art.  IX.,  p.  17.)  The  latter  words  were 
stricken  out  of  a  draft  of  the  present  Constitution.  Id.  The  debate 
given  in  full.  Id.  31,32;  Madison  papers,  1343-4-5-6;  Daniel 
Webster;  United  States  v.  Marigold,  9  How,  567  ;  Craig  v.  Missouri  72. 
quoted.  Id.  37,  38.  And  see  the  dissentient  opinions,  in  the 
Pennsylvania  legal  tender  cases.  52  Penn.  State  Reports,  1-100. 

A  contract  may  be  satisfied  by  a  payment  of  what  is  a  legal 
tender  at  the  time  the  contract  is  to  be  performed  or  the  debt 
falls  due,  although  in  depreciated  money.  (Davies  Reports,  48.)  99, 100. 
Shollenberger  v.  Brinton,  52  Penn.  (2  P.  F.  Smith),  46.  The 
constitutionality  is  maintained  in  the  opinions  of  a  majority  of  the 
judges,  from  pages  57  to  100. 

This  clause  itself  would  carry  along  the  right  to  regulate  the  value 
of  money.  (Madison's  Letter  to  Cabell,  18th  Sept.,  1828.)  Story's 
Const.  §  1117. 

9§.  MONEY. — Is  the  universal  medium  or  common  standard,  by  What  is 
comparison  with  which  the  value  of  all  merchandise  may  be  ascer-  money? 
tained ;  or  it  is  a  sign  which  represents  the  respective  values  of  all  %&• 
commodities.  (1  Black.  Com.  276.)  Story's  Const.  §  1118. 

Our  review  of  the  legislation  of  Congress  has  shown  us  that  What  is  a  le- 
Congress  has  uniformly  declared  the  money  so  coined,  and  the  Sal  tender  ? 
value  of  which  has  thus  been  regulated,  should  be  received  as  a 
legal  tender  in   payment  of  debts  equally,   whether  due  to   the  82-84. 
government  or  to  private  individuals,  &c.    Metropolitan  Bank  v  99, 100. 
Van  Dyck,  27  N.  Y.  426. 

The  coin  has  no  pledge  of  redemption;   the  intrinsic  value  is  not  Has  coin  a 
a  question  ;  the  treasury  notes  have  a  pledge  for  redemption  ;  and  plwi?e_of  re- 
they  may  become  a    substitute  for  coin.     (Madison's   Message.)    emp  I0 
Metropolitan  Bank  v.  Van  Dyck,  27  N.  Y.  R.  430.  431. 

99.  AND  REGULATE  THE  VALUE. — For  a  history  of  the  acts  How  regu- 
regulating  the  value  of  money  and  prescribing  legal  tenders,  see  late  tne 
Metropolitan  Bank  r.  Van  Dyck,  27  N.  Y.  Rep.  424.     This  power™ 
is  limited  to  the  coining  and  stamping  the  standard  of  value  upon 
what  the  government  creates  or  shall  adopt,  and  to  punishing  the 
offense  of  producing  a  false  imitation  of  what  may  have  been  so        155 
created  or  adopted.     Fox  v.  Ohio,  5  How.  433. 

This  power  is  exclusively  in  Congress.     Rawle's  Const.  102. 


116  TENDER-WEIGHTS,   100-102.      [Art.  I.,  Sec.  8, 

What  are  the      10O.  There  is  no  express  grant  of  power  to  make  gold  and 

restric^r0"3    silver,  or  any  thing  else,  a  legal  tender.     Metropolitan  Bank  v. 

tender?         ^an  Dyck,  2T  N.  Y.  Rep.  426.     But  the  power  has  been  uniformly 

exercised  ever  since  the  foundation  of  the  government,  unqiu-s- 

9T.         tioned  by  any.  department  of  the  Federal  and  State  governments. 

g^        This  contemporaneous  construction  is  to  be  received  as  evidence  of 

the  power.     (Martin  v.  Hunter,   1  Wh.  421;  Cohens  v.  Virginia, 

71.         6  Wh.  421 ;  Briscoe  v.  The  Bank  of  Kentucky,  11  Pet.  527  ;  Moors 

v.  The  City  of  Reading,  21  Perm.  188;  Norris  v.  Clymer,  2  Penn. 

277 ;  The  People  v.  Green,  2  Wend.  274;  The  People  v.  Coutant, 

11  Wend.  511.)     Metropolitan  Bank  v.  Van  Dyck,  27  N.  Y.  Rep. 

427-8.     A  discretionary  power  must  exist  somewhere  in  every 

government.     Story's  Const.   §   425;  Anderson  v.  Dunn,   6  Wh. 

204,  220 ;  Metropolitan  Bank  v.  Van  Dyck,  27  N.  Y.  Rep.  429. 

Is  intrinsic    The  intrinsic  value  of  the  metal  on  which  money  is  coined  is  of  no 

value  <>f  con-  consequence.     Id.  430. 

Where  a  party  deposited  money  with  his  banker  upon  general 
97.  principles,  it  became  a  loan  to  the  bank,  which  fact  is  not  over 
ruled  by  the  word  "gold,"  against  the  amount  on  the  depositor's 
bank  book.  In  such  cases  a  tender  of  United  States  legal  tender 
treasury  notes  is  sufficient.  The  depositor  cannot  demand  gold  as 
his  special  deposit.  Thompson  v.  Riggs,  5  Wallace. 

What  is  a  1O1.    "  TO   FlX  THE   STANDARD   OP  WEIGHTS   AND   MEASURES." 

standard?  To  Fix  is  to  make  permanent,  to  regulate.  Webster's  Die.  Fix. 
A  STANDARD  is  that  which  is  established  by  authority,  as  the  rule  to 
measure  a  quantity,  as  a  gallon,  a  pound,  or  a  weight.  Webster. 
The  States  are  not  expressly  inhibited  from  exercising  this  power ; 
and  in  the  absence  of  Congressional  legislation,  it  has  been  tole 
rated.  Rawle's  Const.  102  ;  Story's  Const.  §  1122. 

What  is  a         1O2.  "  WEIGHTS  AND  MEASURES." — A  "  ton"  is  twenty  hundred 
ton?  weight;    each  hundred  weight  being  112  pounds.      Act  of  30th 

101.        Aug.,  1842.    1  Brightly's  Dig.  370,  §  218. 

What  is  a          The  brass  troy  pound  weight,  procured  by  the  Minister  of  tho 

standard       United  States  in  London,  in  the  year  1827,  for  the  use  of  the  mint, 

pound  o' U.and  now  jn  the  custody  Of  the  director  thereof,   shall  be   the 

standard  troy  pound  of  the  mint  of  the  United  States,  conformably 

to  which  the  coin  thereof  shall  be  regulated. 

ITowotenis  It  shall  be  the  duty  of  the  director  of  the  mint  to  procure  and 
standard  safely  keep  a  series  of  standard  weights  corresponding  to  the 
aforesaid  troy  pound,  consisting  of  a  one-pound  weight,  and 
the  requisite  subdivisions  and  multiples  thereof,  from  the  hundredth 
part  of  a  grain  to  twenty-five  pounds.  And  the  troy  weights 
ordinarily  employed  in  the  transactions  of  the  mint,  shall  be  regu 
lated,  according  to  the  above  standards,  at  least  once  in  every  year, 
under  his  inspection ;  and  their  accuracy  tested  annually  in  the 
presence  of  the  assay  commissioners,  on  the  day  of  the  annual 
assay.  Act  of  19th  May,  1838,  4  St.  278;  §§  3,  4 ;  1  Brightly's 
Dig. "p.  635,  §§  46,  47. 

What  is  the      What  proof  spirit  shall  be  held  and  taken  to  be  that  alcoholic 
Spirit  l^uor  which  contains  one-half  its  volume  of  alcohol  of  a  specific 

weight?       gravity  of  seven  thousand  nine  hundred  and  thirty-nine  ten  thou- 


01.  5.] 


WEIGHTS  AND  MEASURES,    102. 


117 


sandths  (7,939)  at  sixty  degrees  Fahrenheit;  and  the  Secretary  of 
the  Treasury  is  hereby  authorized  to  adopt,  procure,  and  prescribe 
for  use  such  hydrometers,  weighing  and  gauging  instruments, 
meters,  and  other  means  for  ascertaining  the  strength  and  quality 
of  spirits  subject  to  tax,  &c.,  and  to  insure  a  uniform  and  correct 
system  of  inspection,  weighing  and  gauging  spirits  subject  to  tax 
throughout  the  United  States,  &c.  Act  of  2d  March,  1867,  14  St. 
481. 

The  following  is  the  first  general  act  of  Congress  which  I  find 
on  the  subject  of  weights  and  measures ;  and  certainly  it  is  of  suf 
ficient  importance  to  occupy  a  place  in  a  Manual  of  this  kind: — 

CHAP.  CCCI. — "An  Act  to  authorize  the  use  of  the  Metric  System  of  Act  of  2Sth 

Wtights  and  Measures.  Jul^  ^ee, 

14  ot.j  ooy?  - 

Be  it  enacted,   &c.,  That  from  and  after  the  passage  of  this340- 
act  it  shall  be  lawful  throughout  the  United  States  of  America  to  What  is  the 
employ  the  weights  and  measures  of  the  metric  system ;  and  no  standard  of 
contract  or  dealing,   or  pleading  in  any  court,  shall  be  deemed  measures? 
invalid  or  liable  to  objection  because  the  weights  or  measures  ex 
pressed  or  referred  to  therein  are  weights  or  measures  of  the 
metric  system. 

2.  The  tables  in  the  schedule  hereto  annexed  shall  be  recognized  The  metric 
in  the  construction  of  contracts,  and  in  all  legal  proceedings,  as  system 
establishing,  in  terms  of  the  weights  and  measures  now  in  use  in 
the  United  States,  the  equivalents  of  the  weights  and  measures  recognized  ? 
expressed  therein  in  terms  of  the  metric  system ;  and  said  tables 
may  be  lawfully  used  for  computing,  determining,  and  expressing 
in  customary  weights  and  measures  the  weights  and  measures  of 
the  metric  system. 


MEASURES   OF   LENGTH.                                          What  for 
meusuririi. 

METRIC 

DENOMINATIONS    AND    VALUES. 

length  ? 

Myriameter 
Kilometer 

10  000  meters 

6.2137  miles. 
0.62137  miles,  or  3280  feet  und  ten  iuchea. 
328  feet  and  1  inch. 
393.7  inches. 
39.37  inches. 
3.937  inches. 
0.3937  inches. 
0.0394  inches.  (0.0393!) 

Hectometer 
Dekameter. 

.   .     .                            100  meters. 

Meter  

10     of  a  meter 

• 

Millimeter.. 

MEASURES  OF  SURFACE. 


Surface. 


s  tires  of  sur 

Hectare  

..     10,000  squ 

we  meters. 

2.471  acres. 

face? 

Are  

100  squ 

ire  meters.    . 

119.6  square  yards. 

CenUre  

1  squ 

ire  meter. 

looO  square  inches. 

118        WEIGHTS  AND  MEASURES,    102,    103.  [Art  I.,  Sec.  8, 

Capacity.  MEASURES  OF  CAPACITY 


For  mea 
sures  of 
capacity. 


METRIC    DENOMINATIONS   AND    TALUKS. 

EQUIVALENTS   IN    DENOMINATIONS 
IN    USB. 

Names. 

Number  of 
liters. 

Cubic  measure. 

Dry  Measure. 

Liquid  or  Wino 
Measure. 

Kiloliter,  or  store 
Hectoliter  

1,000 
100 

1  cubic  meter  
"|  o  of  a  cubic  meter.... 

1.308  cubic  yards  
2  bushels  &  3.35  pecks 

264.17  gallons. 
26.417  gallons. 

Dekaliter  

10 

10  cubic  decimeters... 

9.08  quarts  

2.6417  gallons. 

Liter  
Deciliter  
Centiliter  
Milliliter  

TV 
ToU 
TooTJ 

1  cubic  decimeter  

1    of  a  cubic  decline  ter 
"l  0 
10  cubic  centimeters.  . 

1  cubic  centimeter..  . 

0.908  quarts  
0.1042  cubic  inches...  . 
0.6102  cubic  inches.... 
0.061  cubic  inches  

1.0567  quarts. 
0.845  gills. 
0.388  fluid  ozs. 
0.27  fluid  dr's. 

Weights. 


"What  stand 
ard  of 
weights  » 


WEIGHTS. 


METRIC   DKNOMINATIONS    AND    VALUES. 


Names. 

No.  of  Grams. 

Weight  of  what  quantity 
of  water  at  maximum 
density. 

Avoirdupois  weight. 

Millier  or  Tonneau 

Quintal           

100  000 

10  000 

10  liters 

Kilogram  or  kilo.  .  .  . 

1  000 

1  liter                       .... 

2  2046  pounds. 

100 

Dekagram  
Gram 

10 
1 

1  0  cubic  centimeters  

0.3527  ounces. 
15432  grains. 

Decigram  
Centigram  
Milligram  

i 

1  00 

ToVo 

_1_-  of  a  cubic  centimeter. 
10  cubic  millimeters  
1  cubic  millimeter  

1.5432  grains. 
0.1543  grains. 
0.01  54  grains. 

What  power 


[6.]  To  provide  for  the  punishment  of  counterfeiting 
e  securities  and  current  coin  of  the  United  States. 


What  is  1O8.  COUNTERFEITING.    [Law  Latin,  Contrafactum.]    That  which 

counterfeit-  js  made  in  imitation  of  something,  but  without  lawful  authority,  or 

DS  contrary  to  law,  and  with  a  view  to  pass  the  false  for  the  true. 

(Wharton's  Lex.)    Burr-ill's  Law  Die.,  COUNTERFEITING. 

The  making  in  the  semblance  of  true  gold  or  silver  coin  any 
coin  having  in  its  composition  a  less  proportion  of  the  precious 
metal  than  is  contained  in  the  true  coin,  with  intent  to  pass  the 
same;  or  the  altering  of  coin  of  lesser  value,  so  as  to  make  it  re 
semble  coin  of  the  higher  value.  Paschal'a  Annotated  Digest, 


01.  6,  7.]         COUNTERFEITING,    P.    O.,    103,    104.  119 

Arts.  2113,  2114.    See  the  Act  to  Punish,  1  Brightly's  Dig.,  p.  215, 
Art.  VII,  §§  73-79 

Whether  Congress  has  power  to  provide  for  the  punishment  of 
passing  counterfeit  coin,  has  been  doubted.     This  power  is  cer-  Have  the 
tainly  possessed    by   States.      Metropolitan    Bank   v.  Van  Dyck,  States  power 
"11  N.  Y.  420.     But   Congress   may,  without   doubt,    provide   for  £unterfeit- 
punishing  the  offense  of  bringing  into  the  United  States,  from  a  ing? 
foreign   place,  false,  forged,  and   counterfeit   coins    made   in   the 
similitude  of  coins  of  the  United  States;  and  also  for  the  punish 
ment  of  the  offense  of  uttering  and  passing  the   same.     United 
States  v.  Marigold,  9  How.  5UO ;  Metropolitan  Bank  v.  Van  Dyck, 
27  N.  Y.  Rep.  450.     In   Fox  v.  Ohio,   5   How.  435,    Mr.  Justice 
McLean  dissented  ;  and  insisted  that  Congress  has  the  right  (and 
has  exercised  it)  to  punish  the  uttering  of  counterfeit  coin ;  aud 
therefore  the  States  have  not  the  same  power. 

The  right  to  punish  the  counterfeiting  of  the  public  coin  is  vested 
exclusively  in  Congress;  and  it  cannot  be  concurrently  exercised 
by  the  States ;  and  such  a  State  law  is  void.  Mattison  v.  The  State 
of  Missouri,  3  Mo.,  421. 

In  Fox  v.  The  State  of  Ohio,  this  court  have  taken  care  to  point 
out  that  the  same  Act  might,  as  to  its  character,  tendencies,  and 
consequences,  constitute  an  ofleVise  against  botli  the  State  and  the 
Federal  governments,  and  might  drSw  to  its  commission  the  penal 
ties  denounced  by  either,  as  appropriate  to  its  character  in  reference 
to  each.  (Fox  v.  Ohio,  5  How.  433.)  United  States  v.  Marigold, 

9  How.  560;  Story's  Const.  §  1123,  note  4. 

And  see  United  States  v.  King,  5  McLean,  203;  United  States  v. 
Burns,  Ibid.  23;  United  States  v.  Brown,  4  Ibid,  142;  United 
States  v.  Morrow,  4  W.  C.  C.  R.  733 ;  United  States  v.  Gardner, 

10  Pet.  618;  Commonwealth  v.  Hutchinson,  2  Pars.  354;  United 
States  v.  Hutchinson,  7  Penn.  Law  J.  365. 


[7.]  To  establish  post-offices  and  post-roads. 


1O4.  "  ESTABLISH  "  is  the  ruling  term  ;  post-offices  and  post-  What  is  trie 
roads  are  the  subjects  on  which  it  acts.     The  power  is  thereby  J"sti™P°rt 
given  to  fix  on  towns,  court  houses,  and  other  places  throughout  ^ordsfand 
our  Union,  at  which  there  should  be  post-offices,  the  routes  by  the  extent 
which  mails  should  be  carried  from  one  post-office  to  another,  to  fix  of  the  grant? 
the  rate  of  postage,  and  to  protect  the  post-offices  and  mails  from 
robbery.     (President  Monroe's  Message,  4th  May,  1822,  pp.  24-27.) 
Story's  Const.  §  1129,  note  2,  of  third  edition. 

The  word  "  ESTABLISH,"  in  other  parts  of  the   Constitution,  is  8,  _13,  93-95, 


used  in  a  general  sense.     Thus,  "  to  establish  justice  ;"   "  and  estaft-  jj 
lish  this  Constitution;"  "to  establish  a  uniform  rule  of   natural-  estabii8h. 
ization    and  system  of  bankruptcies;"    "such    inferior  courts   as 
Congress   may  ordain   and   establish  ;"  "  the  establishment  of  this 
Constitution  ;"  "an  establishment  of  religion." 

The  clear  import  of  the  word  is,  to  create,  form,  and  fix  in  a         101. 
settled  manner.     Story's  Const.  §  1131. 

The  controversy  has  been  between  the  power  to  make  the  roads 
and  the  power  to  fix  on  and  declare  them  mail  routes,  after  the  ex- 


120  POST-OFFICES,    104,    105.         [Art.  I.,  Sec.  8, 

tending  settlements  have  opened,  established,  adopted,  or  built  roads 
and  paths.  See  the  subject  fully  discussed  in  Story's  Const,  chap. 
XVIII.  §  1124-1150;  and  Notes  to  Third  Edition;  and  1  Kent's 
Com.  Lect.  XII.  267-268. 

The  Confederate  Constitution  added  this  sentence:  "But  the 
expenses  of  the  Post-Office  Department,  after  the  first  of  March,  in 
the  year  of  our  Lord  eighteen  hundred  and  sixty-three,  shall  bo 
paid  out  of  its  own  revenues."  Paschal's  Annotated  Digest,  88. 

The  first  year's  history  of  the  insurgent  government  demon 
strated  the  impracticability  of  the  restriction. 

What  are  1O5.  POST-OFFICES. — As  understood,  under  the  Confederation, 
post-offices  ?  and  since  carried  out  by  statutes,  and  in  practice,  post-offices  may 
be  defined  to  be  the  General  Post-Office  at  Washington,  presided  over 
by  one  of  the  President's  advisers,  called  the  Postmaster-General. 
This  office  was  first  held  by  Dr.  Franklin,  in  1775.  (Story's  Const.  § 
1126,  note  1.)  It  is  now  an  immense  palace  (with  over  a  hundred 
rooms),  erected  and  owned  by  the  government,  wherein  the  whole 
of  the  postal  service  of  the  United  States  is  superintended  and  the 
business  directed,  and  where  all  contracts  for  mail  service  are  let, 
and  the  accounts  therefor  are  settled.  The  Postmaster-General  is 
assisted  by  three  Assistant  Postmaster-Generals,  an  Auditor,  and 
several  hundred  clerks.  Every  postmaster  in  the  United  States  is  a 
deputy  to  the  Postmaster-General.  There  are  numerous  route  agents 
and  detectives  :  and  every  line  of  post-roads  is  well  known  and  care 
fully  watched.  Every  place  in  the  United  States,  whether  in  office, 
house,  tent,  booth,  boat,  vessel,  car,  wagon,  or  box,  where  the 
mails  are  opened  and  the  mail  matter  delivered,  is  called  a  "  POST 
OFFICE,"  and  the  sworn  and  bonded  deputy  who  opens  and  delivers 
19, 35, 169.  the  written  and  printed  matter  received,  is  called  a  "  POSTMASTER  ;" 
although  many  of  them  might  be  called  "POSTMISTRESSES,"  as 
ladies  are  frequently  appointed  of  late  years. 

Describe  the  The  first  post-office  ever  established  in  America  seems  to  have 
postal  ser-  been  under  an  act  of  Parliament  in  1710.  (Dr.  Lieber's  Encyc. 
Ylce<  Amer.,  POSTS.)  In  England  the  first  regular  mode  adopted  was  in 

1642.  (Malkin's  Introductory  Letter.)  In  1790  there  were  75 
post-offices  in  the  United  States;  1,875  miles  of  post-roads;  the 
amount  of  postage  was  $37,935.  In  1828  there  were  7,530  post- 
offices  ;  115,176  miles  of  post-roads,  and  the  amount  of  postage  was 
$1,659,915.  (The  American  Almanac  Repository,  Boston,  1830. 
p.  217;  American  Almanac  for  1832,  p.  134;  Dr.  Lieber's  Encyc. 
Americana,  Article  POSTS.)  Story's  Const.  §  1125  (3d  ed.,  note  1.) 
In  1866  there  were  23,828  post-offices;  180,921  miles  of  post- 
roads;  amount  of  postage,  $14,386,986.21. 

For  the  rates  of  foreign  postage,  and  monthly  valuable  statistics, 
see  "  United  States  Mail  and  Post-Office  Assistant,"  New  York. 

The  rates  for  letters  are  three  cents  for  every  half  ounce,  in  the 
United  States.  All  mail  matter  is  charged  by  weight. 

What  im  It  is  questionable  whether  the  government  could  peaceably  re- 

provement  turn  to  the  unequal  charges  of  our  fathers.  It  can  be  hoped,  that 
fng  suggS-  some  Public  man  ma7  7et  develop  the  idea,  that  a  system  of  carry - 
ed?  ing  the  mails  by  weight  would  be  practicable ;  more  just  to  the  car 

riers  ;  more  economical  to  the  government ;  and  immensely  bene- 


Cl.  7  8.]  p.    E.—  SCIENCE—  ARTS,    106,    107.  121 

ficial  to  the  people,  as  thereby  the  carrying  need  not  to  be  profess 
edly  limited  to  paper;  but  (like  our  immense  express  companies, 
which  first  forced  upon  the  government  the  weight  system  of 
tariffs,)  every  thing  might  be  carried  and  charged  for  by  the  ounce, 
with  a  direct  responsibility  upon  the  government  for  safe  delivery. 
To  the  "  regulations  "  of  rates  may  be  added  the  volume  of 
laws  and  regulations  sent  out  every  year,  which  establish  "post- 
offices  and  post-roads,"  and  regulate  the  service  and  punish  infrac 
tions  of  the  law. 

106.  "POST  ROADS."  —  Every  railroad,   turnpike,   wagon-road,  What  are 
path,  river,  creek,  ocean,  sea,  gulf,  lake,  and  pond,  over  which  post-roads  ? 
mails  are  transported,  may  be  denominated  post-roads. 

Every  person  and  corporation  engaged  in  carrying  and  deliver-  Who  are 
ing  the  mails,  is  called  a  mail  carrier  or  contractor  ;  and  they  all  "?ail  car- 
act  under  official  responsibility.     It  may  at  once  be  deduced  that  ne 
the  books,  maps,  reports  and  information  to  be  gathered  from  the 
General  Post-Office  Department  is  the  most  valuable  to  the  student 
of  geography  in  the  United  States. 

Among  the  "REGULATIONS"  are  the  rates  for  carrying  mail-  What  are  the 
matter,  which,  in  1846,  were  changed  from  the  senseless  method  rates^  of 
of  charging  the  "single  letter"  at  25  cents  and  the  "double  let-  fhTcEu-ges  ? 
ter  "  in  proportion,  regardless  of  weight  or  value,  to  the  common 
sense  tariff  of  weights.     The  present  laws  regulating  post-offices 
and  post-roads,  the  rates  of  postage,  the  franking  privilege,  and  the 
whole  mail  service,  will  be  found  in  books  issued  by  the  Postmas 
ter-General,  and  in  Brightly  's  Dig.  pp.  363  to  383  ;  see  also  2  Bright- 
ly's  Dig.  750  to  800. 

It  is  under  this  power  that  Congress  has  adopted  the  mail  regula-  What  are 
tions  of  the  Union,  and  punishes  all  depredations  on  the  mail.  the  powers 
Sturtevants  v.  City  of  Alton,  3  McLean,  393.     The  power  to  estab-  of 
lish  post-roads  is  restricted  to  such  as  are  regularly  laid  out  under 
the  laws  of  the  several  States.  Cleveland,  Painesville  and  Ashtabula 
R.  R.  Co.  v.  Franklin  Canal  Co.,   Pittsburg  L.  J.,  24th  December, 
1853;  Pennsylvania  v.  Wheeling  and  Belmont  Bridge  Co.,  18  How. 
421  ;  Dickey  v.  Turnpike  Road  Co.,  7  Dana,  113;  1  Kent's  Com.  281, 
282. 

But  under  this  power  Congress  may  make,  repair,  keep  open,  and  78-80. 
improve  post-roads.     Dickey  v.  Turnpike   Road  Co.  7  Dana,  113. 
For  conflicting  views,  see   1  Kent's  Com.  llth  ed.  p.  268,  note  c. 

Nothing  which  tends  to  facilitate  the  intercourse  between  the 
States,  can  be  deemed  unworthy  of  the  public  care.  Federalist, 
No.  42. 

[8.]  To  promote  the  progress  of  science  and  the  what  is  tho 
useful  arts,  by  securing,  for  limited  times,  to  authors  author 


and  inventors  the  exclusive  right  to  their  respective111 
writings  and  discoveries. 

1O7.  To  PROMOTE  [Promovno,  pro  and  moveo,  to  move]  is  here  To  promote, 
used  to  advance,  foster,  and  encourage,  by  all  the  liberal  legislation 
which  can  aid.     Worcester's  Die.  PROMOTE. 
6 


122 


SCIENCE — AUTHORS,    107.  [Art.  I.,  Sec,  8, 


Progress. 


Define 
science. 


Arts. 


Distinguish 


THE  PROGRESS  [Projresstis,  Projredior,  advancement],  that  is 
the  growth,  advancement  of,  and  constant  progression.  \Vorc. 
Die.  PROGRESS. 

SCIENCE.  [SCIENTIA,  from  Scio,  Scire  to  know.]  Knowledge.  It 
is  used  here  in  the  sense  of  Abstract,  Mental,  Mathematical, 
Natural,  and  Physical  Science.  (See  the  whole  detinitions  and 
synonyms,)  Webster's  Die.  SCIENCE. 

As  practically  illustrated  by  our  legislation,  the  word  has  no 
limitation  in  the  whole  range  of  literature  and  knowledge,  since  all 
authors  have  a  right  to  obtain  copy-rights  for  their  books,  maps, 
pictures,  and  ever}r  thing  printed  and  first  published  as  such  in  the 
United  States.  Clayton  v.  Stone,  2  Paine.  383 ;  Jollie  v.  Jaques, 
1  Blatch.  618 ;  Binns  v.  Woodruff,  4  W.  C.  C.  48  ;  Wheaton  v. 
Peters,  8  Wheat.  591. 

"  AND  USEFUL  ARTS." — ART  [ Ars,  Arlis].  The  power  of  doing 
something  not  taught  by  nature.  Worcester's  Die.  ART. 

This  word  is  also  intimately  connected  with  science. 

The  distinction  between  Science  and  Art  is,  that   Science  is  a 


science  and 
art 


Define  se 
cure. 


between^  ^  body  of  principles  and  deductions,  to  explain  the  nature  of 
some  matter.  An  Art  is  a  body  of  precepts,  with  practical 
skill  for  the  completion  of  some  work.  Science  teaches  us 
to  know;  an  Art  to  do.  In  Art  truth  is  means  to  an  end;  in 
Science  it  is  the  only  end.  Hence  the  practical  arts  are  not  to 
be  classed  among  the  sciences.  (Whewell.)  Wore.  Die.  SCIENCE. 
Science  never  is  engaged,  as  art  is,  in  productive  application. 
(Kearslake)  Worcester. 

BY  SECURING. — [Securus,  se  and  cura,  or  without  care.]  Here 
used,  by  protecting  in  the  exclusive  use  of;  to  make  certain;  to 
put  beyond  hazard;  to  assure;  to  insure;  to  guaranty.  Worces 
ter's  Die.  SECURE. 

Why  a  limit-  "  FOR  A  LIMITED  TIME." — Not  perpetually ;  but  for  a  reasonable 
edtime?  time.  The  Acts  of  Congress  have  generally  fixed  the  limit  of 
fourteen  years,  which  was  the  period  in  England  when  the  Consti 
tution  was  adopted.  2  Bl.  Com.  406,  407,  Christian's  notes,  5,  85  ; 
Millar  v.  Taylor,  4  Burroughs,  2303  ;  Rawle's  Const,  eh.  9,  pp.  105, 
106;  2  Kent's  Com.  Lect.  36,  pp.  299-306.  The  case  in  Burroughs, 
2303,  exhausts  the  whole  ancient  learning  on  the  subject  of  copy 
rights.  It  is  a  grant  by  the  government  to  tho  author  of  a  new 
and  useful  invention,  of  the  exclusive  right  for  a  term  of  years,  tho 
practising  that  invention.  Curtis  on  Patents,  p.  LX. 

"  USEFUL,"  utility,  has  been  long  exploded  as  an  unnecessary  and 
superfluous   condition.      Millar  v.   Taylor,  4   Bur.,    2303 ;    Hall's 
New  York  edition,  182.     Puffendorf,  Lib.  4  c.  5,  p.  378,  note  1. 
Who  is  an         "  To  AUTHORS."      [ylwcfor.]       He  to  whom  any  tiling  owes  its 
author?         origin;    originator;    creator;  maker;  first  cause.     One  who  com 
pletes  a  work  of  science  or  literature;  the  first  writer  of  any  thmg 
distinct  from  a  translator  or  compiler.     Wore.  Die.  AUTHOR. 
Flow  are  In   the   United    States,   an    author  has  no   exclusive    property 

copy-rights  jn  a  published  work,  except  under  some  act  of  Congress.  Whea 
ton  v.  Peters,  8  Pet.  591  ;  Jefferys  v.  Booaey,  30  Eng.  L.  &  Eq.  1 ; 
Dudley  v.  Mayhew,  3  Comstock,  12.  It  had  been  decided  in  Great 


01.  8.]  AUTHORS— INVENTORS,    107,   108.  123 

Britain  before  the  revolution,  to  be  a  common  law  right.  Sto 
ry's  Const.  §  1152.  Overruled.  Dudley  v.  Mayhew,  3  N.  Y.  (3 
Const.)  12. 

The  power  is  confined  to  authors  and  inventors ;  and  cannot  be 
extended  to  the  introducers  of  new  works  or  inventions.  Story's 
Const  §  1153.  See  Federalist,  No.  43;  1  Tuck.  Black.  Com.  App. 
2G5,  266;  Hamilton's  Report  on  Manufactures,  §  8,  pp.  235,  230; 
Livingston  v.  Van  Ingen,  9  John.  507  ;  Journal  of  Convention,  260, 
261,  327-329.  - 

1O8.  AND  INVENTORS."  [Invento;  in,  and  venio,  to  come.]  Who  aro 

To  invent  is  to  devise  something  new,  not  before  made,  orinventorsf 
to  modify  and  combine  things  before  made  or  known,  so  as  to  form 
a  new  whole.  Wore.  Die.  INVENT.  One  who  invents ;  a  con 
triver.  This  right  was  saved  out  of  the  statute  of  monopolies  in 
the  reign  of  Kin^  James  the  First,  and  has  ever  since  been  allowed 
for  a  limited  period,  not  exceeding  fourteen  years.  2  Black.  Com. 
406,  407  ;  Christian's  notes,  5,  8  ;  2  Kent's  Com.  Lect.  36.  pp.  306- 
315. 

Patents  are  entitled  to  a  liberal  construction,  since  they  are  For  what  are 
not  granted  as  restrictions  upon  the  rights  of  the  community, 
"  to  promote  the  progress  of  science  and  the  useful  arts."  Blan- 
chard  v.  Sprague,  3  Sumner,  535;  Grant  v.  Raymond,  6  Pet.  218; 
Hogg  v.  Emmerson  6  How.  486;  Brooks  v.  Fisk,  15  Id.  223. 
The  power  of  Congress  to  legislate  upon  the  subject  of  patents  is 
plenary,  by  the  terms  of  the  Constitution ;  and  as  there  are  no  re 
straints  on  its  exercise,  there  can  be  no  limitation  of  its  right  to 
modify  them  at  its  pleasure,  so  that  they  do  not  take  away  the 
rights  of  property  in  existing  patents.  McClurg  v.  Kingsland,  1 
Id.  206.  Evans  v.  Eaton,  3  Wheat.  545;  s.  c.  7  Wheat.  356; 
Evans  v.  Hettisli,  7  Wheat.  453  ;  Blanchard  v.  Sprague,  3  Sumner, 
541.  Therefore,  Congress  has  the  power  to  grant  the  extension 
of  a  patent  which  has  been  renewed  under  the  act  of  1836. 
Bloomer  v.  Stolley.  5  McLean,  1 58.  Its  power  to  reserve  rights 
and  privileges  to  assignees,  on  extending  the  term  of  a  patent,  i3 
incidental  to  the  general  power  conferred  by  the  Constitution. 
Blanchard's  Gun-Stock  Turning  Factory  v.  Warner,  1  Blatch.  258. 

Perhaps  there  is  nothing  which  has  tended  more  to  the  rapid 
development  of  American  genius,  character,  and  improvement,  than 
the  laws  securing  to  authors  and  inventors  their  rights.  The 
Patent  Office  is,  perhaps,  the  most  commodious  house  in  America. 
There  are  collected  the  applications,  specifications,  drawings, 
and  models  of  the  inventors,  whose  works  have  dispensed  with 
the  hand-labor  of  more  millions  than  the  world  now  contains. 
From  this  office  issues  annually  a  report  of  the  current  inven 
tions.  No  lover  of  the  development  of  his  country  should  visit 
Washington  without  giving  himself  a  week  to  examine  the  won 
derful  mysteries  of  the  Patent  Office. 

For  a  most  able  treatise  upon  the  law  of  patents,  the  reader  is 
referred  to  the  very  able  work  of  Curtis  on  Patents,  1867  ;  to  the 
"  PATENT  LAWS,"  issued  by  the  Patent  Office  ;  1  Brightly' s  Dig. 
COPY  RIGHT,  p.  193;  Patents,  721,  and  accurate  notes:  2  Bright 
ly,  353. 


124  TRIBUNALS— PIEACY,  109-111.    [Art.  L,  Sec.  3, 

[9.]  To  constitute  tribunals  inferior  to  the  Supreme 
Court. 

1O9.  To  CONSTITUTE  here  means  to  create  and  organize,  defin 
ing-  the  jurisdiction. 

TRIBUNAL  [Lat.  TRIBUNAL]  Bench  of  a  judge;  hence  courts  of 
justice,  subject  to  the  superior  jurisdiction  of  the  Supreme  Court. 
Webster's  Die.,  TRIBUNAL. 

Do  State  de-      See  American  Insurance  Company  v.  Canter,  1  "Pet.  546.     This 

rSl°nSrob)ef  * power  affor(ls  no  Pretext  for  abrogating  any  established  law  of 

ty^oatrolT"  ProPert7j  °r  f°r  removing  any  obligation  of  her  citizens  to  submit 

to  the  rule  of  the  local  sovereign.    Suydam  v.  Williamson,  24  How. 

433.  Where  any  principle  of  real  property  has  been  settled  in  a 
State  court,  the  same  rule  will  be  applied  by  this  court.     (Jackson 
v.  Chew.  12  Wh.  162;  Beauregard  v.  New  Orleans,  18  How.  497); 
Suydam  v.  Williamson,  24  How.  432,  434.     Even  to  the  over-ruling 
of  our  decisions,  which  have  not  been  followed  by  the  State  courts. 
(Arguello  v.  The  United  States,  18  How.  539  ;  League  v.  Egery,  24 
Id.   265-6;  Foote  v.  Egery,  Id.   268);  Suydam  v.  Williamson,  Id. 

434.  In  the   last  cases,   we  followed  the   interpretation  of  the 
Supreme  Court  of  Texas,  rather  than  our  own,  upon  the  4th  article 
of  the  National  Colonization  Law  of  Mexico.     Suydam  v.  William 
son,  24  How.  434.    In  a  case  of  conflict  of  jurisdiction  between  the 
court  of  a  State  and  that  of  the  United  States,  that  which  first 
attaches  should  hold.     Taylor  v.  Carryl,  20  How.  583. 

What  tribu-  The  tribunals  which  have  been  established  under  this  power  are 
Leen^stab  the  Circuiti  9°urts  and  tne  District  Courts  of  the  United  States, 
lished  under  between  which  have  been  divided  the  controversies  between  liti- 
this power?  gants.  See  Brightly's  Digest,  pp.  124  to  129,  228  to  23 L. 

And  to  these  may  properly  be  added  the  court  of  claims,  which 
has  a  special  limited  jurisdiction  in  certain  suits  against  the  United 
States,  and  the  commissions  and  tribunals  created  at  different 
times  for  the  trial  of  certain  land  claims  arising  under  the  treaties 
with  France,  Spain,  and  Mexico. 

Define  the  [io.]  To  define  and  punish  piracies  and  felonies 
power  on  committed  on  the  high  seas,  and  offenses  against  the 

crimes. 

law  or  nations. 
What  is  to        HO.  To  DEFINE  is  to  give  the  limits  or  precise  meaning  of  a 

word  or  thing  in  being;  to  make,  is  to  call  into  being.      Congress 

has  power  to  define,  not  to  make,  the  laws  of  nations;  but  Congress 
129.        has  the  power  to  make  rules  for  the  government  of  the  army  and 

navy.      James   Speed,  Attorney-General,  upon  the  right  to  try  by 
111.        Military  Commission,  the  conspirators  to  murder  President  Lincoln, 

July,  1865,  p.  4. 

How  has  111.  To  PUNISH,  in  this  sentence,  is  to  inflict  the  penalty  of 

Conjrress-de-  the  law,  which,  in  cases  of  piracy,  is,  by  the  law  of  nations,  death. 

Had  Congress  simply  declared  that  piracy  should  be  punished  with 

110.        death,  the  offense  would  have  been  sufficiently  defined.     Congress 

may  as  well  define  by  using  a   word  of  known  and  determinate 

meaning,  as  by  an  express  enumeration  of  all  the  particulars  in- 


01.9,10.]  FELONY— SEAS,    112-114.  125 

eluded  in  that  terra.  But  it  was  intended  not  merely  to  define 
piracy  as  known  to  the  law  of  nations,  but  to  enumerate  what. 
crime  in  the  national  code  should  be  deemed  piracy.  And  so  the 
power  has  been  practically  expounded  by  Congress.  (United  States 
v.  Smith,  5  Wheat.  153-163.)  Story's  Const.  §  1159;  1  Stat.  113, 
3  Stat.  600. 

112.  "PIRACY"  is  robbery  or  forcible  depredation  on  the  high  What  is  pi- 
seas,    without   lawful   authority,  and  done,  animo  furandi,  in  the  rac7* 
spirit  and   intention  of  universal  hostility.     1  Kent's  Com.   183  ; 

Story's  Const.  §  1160.      The  acts  which,  if  committed  upon  land, 

would  have  amounted  to  felony  there.   7  East.  PI.  of  the  Crown,  796. 

It  is  the  same  offense  at  sea  with  robbery  on  land.     1  Kent's  Com. 

183  ;  Wharton's  Am.  Crim.  Law,  §§  2816-2855.  The  crime  of  piracy 

is  defined  by  the  law  of  nations  with  reasonable  certainty.     United 

States  v.  Smith,  5  Wh.  153.    And  see  Story's  Const.  §  1158,  1159; 

The  Federalist,  No.  4;    Rawle  on  the    Const.,  ch.  9,  p.  107;    2  A  pirate? 

Elliott's  Debates,  389,  390.     A  PIRATE  is  a  rover  and  robber  upon 

the  sea,  an  enemy  to  the  human  race.    Cowel ;  Webster;  3  Inst. 

113;  Bun-ill's  Law  Die.,  PIRATE;  4  Bl.  Com.  71-73.       Piracy  is 

defined  by  Congress  in  the  Acts  13  April,  1790.  1  Stat.  113;  and  15 

May,  1820,  3  Stat.  600.     Brightly's  Dig.  207,  208. 

113.  FELONY  comprises  every  species  of   crime   which  occa- What  is  fel- 
sioned,  at   common   law,  the  forfeiture  of  lands  and  (or)  goods.  ony  * 

All  offenses  which  are  capital,  and  some  which  are  not  capital. 
(Co.  Litt.  391 ;  2  Black.  Com.  93-98 ;)  Story's  Const.  192-194,  1 161. 
Felony  is  a  loose  term,  and  needs  to  be  defined.  (Federalist, 
No.  42;  Elliott's  Debates,  389,  390);  Story's  Const.  §  1160; 
Bun-ill's  Law  Die.,  FELONY,  where  there  are  many  learned  cita 
tions  of  original  authors.  Woodeson's  Lee.  306. 

Felony  on  the  high  seas  seems  not  to  be  of  a  technical  common  What  is  fel- 
law,  but  of  civil  law  definition.     (United  States  v.  Smith,  5  Wheat.  °"y  on  tho 
153,  159;  3  Inst.  112;  Co.  Litt.  391,  a);  Story's  Const.  1162. 

The  Acts  of  26  March,  1804,  2  Stat.  290  ;  3  March,  1825,  4  St. 
115;  3  March,  1835,  4  St.  775;  8  Aug.  1846,  9  St.  73,  all  define 
and  punish  felony.  1  Brightly's  Dig.  208-211. 

114.  "HiGH  SEAS"  [Attum  mare.']  Not  only  the  waters  of  the  What  are  tho 
ocean,  which  are  out  of  sight  of  land,  but  the  waters  on  the  sea-coast,  h'811  seas ' 
below  low- water  mark,  whether  within  the  territorial  boundaries 

of  a  nation  or  of  a  domestic  State.  (United  States  v.  Pirates,  5 
Wheat.  184,  200,  204,  206;  United  States  v.  Wilberger,  5  Wheat,  76, 
94).  Story's  Const.  §  203, 1164.  And  see,  4  Black.  Com.  110  :  Con 
stable's  Case,  5  Co.  Eep.  106;  3  Inst,  13  ;  2  East's  P.  C.  802,  803; 
Hale  in  Harg.  Law  tracts,  ch.  4,  p.  10  ;  1  Hale's  P.  C.,  423,  424. 

As  to  the  States  of  the  Union,  "  High  Seas  "  may  here  be  taken 
to  mean  that  part  of  the  ocean  which  washes  the  sea-coast,  and  is 
within  the  body  of  any  county,  according  to  the  common  law  ;  and 
as  to  foreign  nations,  any  waters  on  their  seacoast  below  low-water 
mark.  (Rawle's  Const,  ch.  9,  p.  147  ;  3  Id.  439,  441 ;  Sergt's.  Const, 
ch.  28,  [ch.  30] ;  1  Kent's  Com.  Lect.  17,  p.  342  ;  United  States  v. 
Grush,  5  Mason's  R.  290);  Story's  Const.  §  1164;  1  Kent's  Com. 


126  OFFENSES,    114,    115,    116.        [Art.  I,  Sec.  8. 

397;  "Waring  v.  Clark,  5  How.  453,  462;  Pyrodus  v.  Howard,  7 
Pet.  342,  324;  Howard  v.  Ingersol),  13  How."  421,  424;  Schooner 
Harriet,  1  Story's  R.  259  Jones  v.  Root,  G  Mass.  435  ;  The  case 
of  Waring  v.  Clarke,  5  How.  451-504,  exhausts  the  whole  learning 
on  the  subject.  13  How.  421-424;  Angel  on  Tide-waters,  ch.  3, 
p.  53  ;  Id.  ch.  1,  pp.  15-34. 

"What  are  115.    "OFFENSES  AGAINST  THE  LAW  OF  NATIONS." — Many  of  the 

offenses  offenses  against  the  law  of  nations,  for  which  a  man  may,  by  the  laws 
ffwofua-6  of  war' lose  his  life' lu's  libertv  >  or  his  property,  are  not  crimes.  It  is 
tions?  an  offense  against  the  laws  of  nations  and  of  war  to  break  a  lawful 

192-124.         blockade,  to  hold  communication  or  intercourse  with  the  enemy,  to 
act  as  spy  (is  an  offense  against  the  laws  of  war,  and  the  pun 
ishment  for  which,  in  all  agos,  has  been  death) ;  to  violate  a  flag  of 
truce,  to  unite  with  banditti,  jayhawkers,  guerillas,  or  any  other 
217-223.        unauthorized     marauders.      And    yet    these    are    not     crimes. 
Some   of  the  offenses  against  the  laws  of  war  are  crimes,    and 
Arealloffen-  some  not.     Because  they  are   crimes,  they  do  not  cease   to   be 
•es  crimes?   offeases  against  those  laws;  nor  because  they    are   not    crimes 
or  misdemeanors  do  they  fail  to  be  offenses  against  the  laws  of 
252-255.        war.     Murder  is  a  crime,  and  the  murderer,  as  such,   must   be 
proceeded   against   in   the   form    and  manner   prescribed    in  the 
Constitution ;    in    committing  the   murder  an   offense    may  also 
have  been  committed  against  the  laws  of  war.     For  that  offense  he 
must  answer  to  the  laws  of  war,  and  the  tribunals  legalized  by 
that  law. 

255.  There  is,  %then,  an  apparent  but  no  real  conflict  in  the  constitu 

tional  provisions.  Offenses  against  the  laws  of  war  must  be  dealt 
with  and  punished  under  the  Constitution  as  the  laws  of  war,  they 
being  a  part  of  the  law  of  nations,  direct :  crimes  must  be  dealt 
with  and  punished  as  the  Constitution,  and  laws  made  in  pursuance 
thereof,  may  direct.  (Speed  on  the  Conspirators,  July,  1 865.) 

Define  the  116.  "LAW  OF  NATIONS." — A  code  of  public  instruction,  which 
law  of  na-  defines  the  rights  and  prescribes  the  duties  of  nations  in  their 
tions.  intercourse  with  each  other.  1  Kent's  Com.  1,2;  Halleck's  In 

ternational  Law,  §  1,  and  numerous  citations. 

Can  Con-          Mr.    Randolph,  then    Attorney-General,    said :    "  The    law   of 

gress  change  nations,  although  not   specifically  adopted  by  the   Constitution,  is 

nations?  "*    essentially  a  part  of  the  law  of  the  land.    Its  obligation  commences 

and  runs  with  the  existence  of  a  nation,  subject  to  modification  on 

some  points  of  indifference."     (See  opinion  Attorney-General,  vol. 

1,  page  27.)     Hence  Congress  may  define  those  laws,  but  cannot 

abrogate  them ;  or,  as  Mr.  Randolph  says,  may  "  modify  on  some 

points  of  indifference.*'     (Speed  on  the  Conspirators),  July,  1863. 

That  the  laws  of  nations  constitute  a  part  of  the  laws  of  the 

land  is  established  from  the  face  of  the  Constitution,  upon  principle 

and  by  authority.     Id. 

117, 118.  But  the  laws  of  war  constitute  much  the  greater  part  of  the  law 

of  nations.  Like  the  other  laws  of  nations,  they  exist  and  are  of 
binding  force  upon  the  departments  and  citizens  of  the  govern 
ment,  though  not  defined  by  any  law  of  Congress.  Id. 


OL10.ll.]  WAR,  117,  118.  127 

Congress  can  declare  war.  When  war  is  declared,  it  must  be,  When  war 
under  the  Constitution,  carried  on  according  to  the  known  laws  js  declared 
and  usages  of  war  amongst  civilized  nations.  Id.  'wTwIgldt 

[11.]  To  declare  war,  grant  letters  of  marque  and  W1jtl^g  th(5 
reprisal,  and  make  rules  concerning  captures  on  land  war  power? 
and  water. 

117.  "  To  DECLARE  WAR."— See  Confederation,  Art.  IX.  p.  U. 

"To  DECLARE,"  may  be  as  well  by  a  formal  recognition,  as  by  a  How  is  war 
declaration  in  advance.     Thus  in  our  war  with  Great  Britain  in  declared? 
1812  :   "  That  war  be,  and  is  hereby  declared  to  exist,  between  the 
United  Kingdom  of  Great  Britain  and  Ireland  and  the  dependencies 
thereof,  and  the  United  States  of  America  and  their  territories." 
Act  of  1812,  ch.  102;   2  St.  755  ;  Story's  Const.  §  1174;  Talbot  v. 
Seaman,  1  Cranch,  28;  Bas  v.  Tingey,  4  Dall.  37. 

And  in  the  war  with  Mexico,  in  1846,  after  the  commencement 
of  hostilities :  "  Whereas  war  exists,  with  Mexico,  by  the  act  of 
Mexico."  9  St.  9. 

So  in  the  qualified  war  with  France,  in  1798,  which  was  regulated 
by  sundry  acts  confining  the  war  within  certain  limits.  Rawle's 
Const,  ch.  9,  p.  109. 

During  the  rebellion,  the  existence  of  the  civil  war  was  recognized 
in  a  number  of  acts  of  Congress,  but  there  was  no  formal  recogni 
tion  of  the  war. 

To  declare  war  in  Great  Britain  is  the  exclusive  prerogative  of 
the  Crown;  and  in  other  countries,  it  is  usually,  if  not  universally, 
confided  to  the  executive  department.  (I  Tucker's  Black.  App. 
271;  4  Black.  Com.  257,  258.)  Story's  Const.  §  1170.  See  Federal 
ist,  No.  41.  See  Halleck's  International  Law,  ch.  20-24.  pp.  289- 
992. 

WAR  is  "  that  state  in  which  a  nation  prosecutes  its  right  by  what  is 
force."     The  Prize  Cases,  2  Black,  G6G.     (A  state  of  forcible  conten-  war? 
tion;  of  armed  hostility  between  nations.     Grotius  de  jure  bell.  lib.         116. 
1.  c.  1.)     Civil  war  exists  when  the  regular  course  of  justice   is  What  is 
interrupted  by  revolt,  rebellion,  or  insurrection,  so  that  courts  of  clv^  wur? 
justice  cannot  be  kept  open.      The    Prize    Cases,    2    Black,    6G7.        132. 
Congress  alone  has  the  power  to  declare  a  national  or  foreign  war ;  234,  235. 
but  not  against  a  State,  or  any  number  of  States,  under  the  Consti 
tution.     But  the   President  may  resist  the  insurrection  without  a 
declaration  of  war.     The  Priae  Cases,  2  Black's  Rep.  668,  669. 

A  civil  war  is  waged  because  the  laws  cannot  be  peaceably  Why  is  civil 
enforced  by  the  ordinary  tribunals  of  the  country  through  civil  pro-  war  wagedf 
cess  and  by  civil  officers.     Speed  on  the  power  to  execute  the 
assassins  of  the  President,  p.  5. 

11§.    As  a  consequence  of  the  power  of  declaring  war,  and  What  can 
making  treaties,  the  government  possesses  the  power  of  acquiring  th<;  i-'overn- 
territory,  either  by  conquest  or  by  treaty.     American  Ins.  Co.  v.  "^'^  ^der 
Canter,  1  Pet.  542  ;  Scott  v.  Sandford,  19  How.  393.     In  this  case,  this  power? 
the  power  to  acquire  territory  is  not  rested  upon  any  particular 
power  in  the  Constitution,  but  is  unqualifiedly  asserted  to  exist.  Id.  231,  232. 


128  WAtt,    118.  [Art,  I.,  Sec.  8 

229-232.        440-7.     It  would  seem  to  be  rested  upon  the  power  to  admit  new 

States.    Id.    All  contracts  made  by  the  citizens  of  one  country  with 

"What  is  the  the  citizens  or  subjects  of  another,  which  countries  are  at  war  with 

effect  of  war  each  other,  are  void.     Griswold  v.  Edrington,  16  Johns.  444.     In 

Sous?  Ol1  ~tnis  case>  Chancellor  Kent  exhausts  the  whole  learning  upon  the 

subject  down  to  1819.     He  says:   "The  law  has  put  the  sting  of 

disability  into  every  kind  of  voluntary  communication  and  contract 

250,  254.        with  an  enemy  which  is  made  without  the  special  permission  of  the 

government."    (16  Johns.  483);  Jackson  v.  Johnson,  11  Johns.  418  ; 

1   Kent's  Com.   66  ;  The  Ann  Dodson,  2   Wh.  27  ;  The  Mary  & 

Susan,  1  Wh.  57  ;  2  Cond.  599;  The  Julia,  8  Or.  181-203  ;  3  Cond. 

152.     When  one  nation  is  at  war  with  another  nation,  all  the  sub 

jects  or  citizens  of  the  one  are  deemed  in  hostility  to  the  subjects  or 

citizens  of  the  other  ;  they  are  personally  at  war  with  each  other, 

and  have  no  capacity  to  contract.    White  et  al.  v.  Burnley,  20  How. 

249;  Ogden  v.  Lund,  11  Tex.  690.     The  court  is  bound  judicially 

to  know  when  war  existed.     Id.  ;  The  Prize   Cases.  2  Black,  666~. 

The  inhabitants  are  not  permitted  to  pass  from  the  one  country  to 

the  other.     Ogden  v.  Lund,  11  Tex.  690.     The  military  upon  the 

frontier,  from  the  necessity  of  the  case,  must  be  charged  with  the 

duty  of  preventing  such  intercourse.     Id.     To  prevent  the  running 

of  a  ferry  between  Texas  and  Mexico,  while  the  United  States  arid 

"What  was      Mexico  were  at  war,  was  lawful,  and  affords  no  ground  of  action 

the  effect  of  agaiast  the  officer.     Id.  692.     See  Constitution  of  the  Confederate 

bellion?  **"  States,  same  section.     Paschal's  Annotated  Dig.,  note  217.     Those 

general  rules  of  law  are  applicable  alike  to  civil  and  international 

wars:   that  all  people,  of  each  State  or  district,   in  insurrection 

against  the  United  States,  must  be  regarded  as  enemies,  until,  by 

the  action  of  the  legislature  and  the  executive,  or  otherwise,  that 

relation  is  permanently  changed.     (The  Prize  Cases,  2  Black,  687.) 

Mrs.  Alexander's  Cotton,  2  Wall.  419;  The  Venice,  2  Wall.  274; 

The  Prize  Cases,  2  Black,  666. 

This  power  necessarily  extends  to  all  legislation  necessary  to  the 
prosecution  of  war  with  vigor  and  success,  except  such  as  interferes 
with  the  command  of  the  forces  and  the  conduct  of  the  campaign. 
Ex  parte  Milligan,  4  Wallace,  139. 

When  two  governments,  foreign  to  each  other,  are  at  war, 
or  when  a  civil  war  becomes  territorial,  all  of  the  people  of  the 
respective  belligerents  become,  by  the  law  of  nations,  the  enemies 
of  each  other.  Speed. 

Ooes  this          But  this  only  authorizes  hostility  by  those  who  are  empowered 
justify  ma-    ^y  fae  express  Or  implied  command  of  the  State,  &c. 

Hence  it  is  that,  in  land  ivars,  irregular  bands  of  marauders  are 

°'    "'         liable  to  be  treated  as  lawless  banditti,  not  entitled  to  the  protection  of 

the  mitigated  usages  of  war  as  practiced  by  civilized  nations.     (Whea- 

ton's  Elements  of  International  Law,  page  406,  3d  edition  ;  Speed 

on  the  Assassins,  p.  9.) 

"  A  pirate,  an  outlaw,  or  a  common  enemy  to  all  mankind  may  be 

112.        put  to  death  at  any  time.     It  is  justified  by  the  law  of  nature  and 

nations.11  (Patrick  Henry  ;  3  Elliott's  Debates  on  Federal  Constitu- 


tried?  The  assassins  were  tried  by  military  commission  and  convicted, 


Cl.11.1  WAR,    118.  129 

and  a  part  of  the  conspirators  executed,  and  a  part  of  them  sen 
tenced  to  imprisonment  for  life.  See  the  volumes  containing  the 
trial  of  the  conspirators  ;  and  see  the  trial  of  Surratt. 

Until  Congress  passes  laws  upon  the  subject  of  war  and  reprisals  Define  the 
no   private  citizen  can  enforce  such  rights;  and  the  judiciary  is  r]ela.ti')rnt8h 
ii:ca[-able  of  giving  them   any  legitimate   operation.     (Brown  v.  i^e'^ebel^ 
United   States,    8    Or.  1.)     Story's  Const.  §  1177.     And  although  lion. 
Mrs.    Alexander    had    taken    the    oath   of    amnesty,    while   she 
remained  in  rebel  territory  she  had  no  standing  in  court.     Mrs. 
Alexander's   Cotton,   2  Wall.  421.     The  cotton   captured  on   the 
land  by  the  naval  forces,  in  a  rebellious  State,  was  not  the  subject 
of  prize.     See  9  Op.  524,  525;  (Speed,  4-10).     The  Queen  of  Eng 
land  recognized  the  Confederates  as  neutrals,  on  the   13th  May, 
1861.     Id.  669.     The  President  must  determine  when  insurrection 
exists.     The  Prize  Cases,  670.     His  proclamation  of  blockade,  of 
19th   April,   18G1,  is  conclusive   upon   the    courts ;  and   neutrals 
were  bound  by  it.      Id.     Under  this  very  peculiar  Constitution, 
although  the  citizens  owe  a  supreme   allegiance  to  the   Federal  To  whom  is 
Government,  they  owe  also  a  qualified  allegiance  to  the  State  in  allerfwioe 
which  they  are  domiciled.     Their  persons  and  property  are  sub 
ject  to  its  laws,  and  they  are  liable  to  be  treated  as  enemies.     Id.  17, 220. 
673.     When  the  legislative  authority  has  declared  war,  tlfe  execu 
tive  authority,  to  whom  its  execution  is  confided,  is  bound  to  carry  What  are  tho 
it  into  effect ;  he  has  a  discretion  vested  in  him,  as  to  the  manner  P1"^^1'8 
and  extent ;  but  he  cannot  lawfully  transcend  the  rules  of  warfare  IK> 
established  among  civilized  nations.     Brown  v.  United  States,  8 
Cr.  153.     The  Supreme  Court  of  the  State  of  Pennsylvania  has  de 
cided  that  the  United  States  conscription  is  unconstitutional.   Judge  What  as  to 
Woodward  gave  the  decision.      The  following  is  an  abstract: — cpnscrip- 
He  starts  with  the  idea  that  the  conscription  levies  upon,  takes, 
and  destroys  the  militia  of  the  States,  and  in  spite  of  the  States. 
He  shows  that  in  1706  and  1707  a  conscription  was  attempted  in 
the  British  Parliament,  but  laid  aside  as  unconstitutional ;  and  he 
reasons  that  our  fathers,  in  making  the  Federal  Constitution,  never 
intended  to  give  a  central  government  power  over  life  and  liberty 
not  found  even  in  the  British  constitution.     Standing  armies  are 
the  jealousies  of  Britons.     Our  fathers  never  intended  to  raise  them 
by  force,  independent  of  the  States.     General  Washington,  in  sup 
pressing   the  whisky   rebellion   of  Pennsylvania,  paid   the    most 
scrupulous  attention  to  the  rights,  and  interests,  and  laws  of  Penn 
sylvania.      Citizens  cannot  be  made  deserters  of  before  they  have 
been  soldiers,  as  the  conscription  act  declares. 

"  There  are  other  features  of  the  conscript  law  that  deserve 
criticism;  but  not  to  extend  my  opinion  further,  I  rest  my  objection 
to  its  constitutionality  upon  these  grounds: — 

"  1st.  That  the  power  of  Congress  to  raise  and  support  armies  does        124. 
not  include  the  powor  to  draft  the  militia  of  the  States.     2d.  That 
the  power  of  Congress  to  call  forth  the  militia  cannot  be  exercised        ISO. 
in  the  forms  of  this  enactment.     3d.  That  a  citizen  of  Pennsylvania 
cannot  be  subjected  to  the  rules  and  articles  of  war  until  he  is  in 
actual  military  service.     4th.  That  he  is  not  placed  in  such  actual 
service  when  his  name  has  been  drawu  from  a  wheel,  and  ten  days' 


130  WAR—  REPRISAL,    118-123.        [Art.  1,  See.  8. 

notice  thereof  has  been  served  upon  him."  Kneedler  v.  Lane, 
9  Wright,  331  ;  48  Penn.  331. 

130-133.  The  conscript  laws  of  the  Confederacy,  which  declared  every 

man  from  seventeen  to  fifty  years  of  age  a  soldier,  were  held,  by  a 
majority  of  the  Supreme  Court  of  Texas  (under  this  same  power) 
to  be  constitutional,  Mr.  Justice  Bell  dissenting.  Paschal's  Anno 
tated  Digest,  notes  217-219;  Ex  parte  Coupland;  26  Tex.  394. 

What  of  119.    "GRANT  LETTERS   OF   MARQUE   AND   REPRISAL."      This 

marque  and  pOwer  W0uld  be  incident  to  the  power  to  declare  war.     (See  Mr. 

Madison's  Letter  to  Mr.  Cabell,  18th  Sept.,   1828.)    Story's  Const. 

§1175. 

Define  12O.    MARQUE   is,  in  public   law,  the  frontier  boundary  of  a 

marque.  country.  And  "to  grant"  is  permission  to  pass  the  frontier 
of  a  country  in  order  to  make  reprisals.  (See  March's  Letters  of 
Marque  ;  1  JB1.  Com.  258.)  .Burrili's  Law  Die.,  MARQUE.  Generally 
used  as  synonymous  with  "reprisal."  1  Black,  Com.  258.  See 
Halleck's  International  Law,  391-398;  Wheaton's  International 
Law,  part  4,  chap.  2,  sec.  10. 

121.  "REPRISAL."  [ReprisaliaJ]  A  retaking;  taking  back; 
recaption.  The  repossessing  one's  self  of  a  thing  unjustly  taken 
by  another.  3  Bl.  Com.  4.  A  taking  of  one  thing  in  satisfaction 
for  another  (captio  rei  uniiis  in  alterius  sali«factionem)  —  frequently 
used  in  the  plural  reprisatia.  Spelman  ;  Loccende  Jur.  Mar.  lib.  3, 
C.  5  ;  1  Kent's  Corn's  61. 

"What  is  the  A  taking  in  return;  a  taking  by  way  of  retaliation.  Burrili's 
meaning  of  Law  Die.  REPRISAL.  In  this  case,  letters  of  "  marque  and  reprisal  " 
reprisal?  (words  used  as  synonymous,  the  latter  [reprisal]  signifying  a 
taking  in  return,  the  former  ["  letters  of  marque  "J,  the  passing  the 
frontiers  in  order  to  such  taking)  contain  an  authority  (grant)  to 
seize  the  bodies  or  goods  of  the  subjects  of  the  offending  State 
wherever  they  may  be  found,  until  satisfaction  is  made  for  the 
injury.  (1  Black.  Com.  258,  259  :  Bynkershock  on  War,  ch.  24,  p 
182,  by  Duponceau  ;  Vulin.  TraitS  de's  Prises,  pp.  223,  321  ;  1  Tuck 
Black.  Com.,  App.  271;  4  Elliot's  Debates,  251.)  Story's  Const.  $ 
1176.  Halleck,  391,  393. 

What  is  th«  [12.]  To  raise  and  support  armies;  but  no  apprc- 
priation  of  money  to  that  use  shall  be  for  a  longer 
term  than  two  years. 


tO 


.  This  power  did  not  exist  under  the  Articles  of  Confede 
ration.  For  discussions  of  the  limitation  and  necessities  of  this 
power,  see  4  Elliot's  Debates,  220,  221  ;  1  American  Museum,  270, 
273,  283;  5  Marshall's  Life  of  Washington,  App.,  note  1;  Id.  ch.  3, 
p.  125,  123;  ch.  5,  p.  212-220;  ch.  6,  p.  238-248;  2  Elliot's 
Debate?,  95,  285.  286,  307.  308,  309.  319,  320,  430,  438;  Federal 
ist,  Nos.  23,  24-29,  41;  Story's  Const.  §  11G8-1198,  3d  ed.  and 
notes. 


"To  RAISE   AND  SUPPORT,"  in  practice,  means  to  edu- 
cate,  commission,  enlist,  draft,  conscript,  feed,  clothe,  transport  and 


01.12.]  ARMIES,  123,  124,  125.  131 

pay  officers  and  men.  See  Brightly's  Digest,  55-90  and  notes; 
2  Id.  9-50.  During  peace  as  well  as  war.  Story's  Const.  §  1186- 
1198. 

124.  "ARMIES."  —  Collections  or  bodies  of  men,  armed  for  war,  Define 
and   organized   in  companies,  battalions,  regiments,  brigades  and  armies. 
divisions,  under  their  proper  officers.     Webster's  Die.  Army.     All 
the  military  in  the  service  of  the  United  States  are  called  the  ARMY 
of  the  United  States.     The  power  to  raise  large  bodies  of  men  and 
divide  them  into  "  ARMIES  "  has  only  been  exercised  three  times  since 
the  formation   of  the  government,  viz.  :     In  the  war  with  Great  117,  us. 
Britain,  1812,  with  Mexico,  1846.  and  during  the  late  rebellion. 

The  Army  of  the  United  States  consists  of  five  regiments  of  What  is  the 
artillery,    ten  regiments  of  cavalry,  forty-five  regiments  infantry,  presmt 
the  Professors  and  Corps  of  Cadets  of  the  United  States  Military  army  ' 
Academy,  and  the  officers  and  men  of  the  different  departments 
and  corps,  under  the  control  of  the  War  Department.     The  ranks 
of  the  commissioned  officers  of  this  army  are  :  General  (Ulysses  S. 
Grant);  Lieutenant-General  (William  T.  Sherman);   Major-General 
(five);    Brigadier-General    (ten);     Colonel;     Lieutenant-Colonel; 
Major;  Captain;  Lieutenant,  first  and  second.     14  Stat.  332  ;   and 
see  the  Reports  of  Sec.  of  War,  1866  and  1867;  and  the  Army 
Register.    At  the  close  of  the  rebellion,  the  army  consisted  of  over 
a  million  of  men,  rank  and  file,  which  had  been  raised  by  enlist 
ment,  drafts,  and  bounties.  The  power  is  unlimited,  being  an  indis 
pensable  incident  to  the  power  to  declare  war.     See  Story's  Const.        123. 
§  1178-1192,  and  the  references;  2  Elliot's  Debates,  285,  286.  307, 
308,  430  ;  Federalist,  Nos.  23,  24,  25,  28.     See   1   Brightly's   Dig. 
55-90;   2  Id.  9-50. 


.  Congress  has  a  constitutional  power  to  enlist  minors,  in  what  is  the 
the  navy  or  army,  without  the  consent  of  their  parents.     United  power  of 
States  v.   Bainbridge,    1    Mass.  71;  Case  of  Emanuel  Roberts,  2  enlistment? 
Hall's  L.  J.  192  ;  United  States  v.  Stewart,  Crabbe,  '205  ;  Common 
wealth  v.  Murray,  4  Binn.  487  ;  Commonwealth  v.  Barker,  5  Id., 
423;  Commonwealth  v.  Morris,  Phil.   R  381;  Ex  parte  Brown,  5        118. 
Cr.  C.  C.  554.     Public  policy  requires  that  a  minor  shall  be  at  lib 
erty  to  enter  into  a  contract  to  serve  the  State,  whenever  such 
contract  is  not  positively  forbidden  by  the  State  itself.     Common 
wealth  v.  Gamble,  11  S.  &  R.  94;  The  King  v.  Rutherford  Grays, 
1  Barn  and  Cress,  345.     The  act  of  21st  June,  1862,  §  2,  12  Stat.  140,  141. 
620,  repealed  the  act  of  28th  September,  1850,  which  required  the 
consent  of  parents  or  guardians  for  the  enlistment  of  minors,  since 
which  repeal  minors,  between  the  ages  of  eighteen  and  twenty-one, 
may  be  enlisted  without  the  consent  of  the  parent  or  guardian. 
Follis's  Case,  10  Leg.  276.     But  see  United  States  v.  Wright,  2 
Leg.  Int.  21,  and  Commonwealth  v.  Carter,  Id.;   Henderson's  Case, 
Id.  187,  where  it  is  held  that  the  act  of  1802  is  still  in  force,  and 
that  such  enlistment  is  void.     In  Shirk's  Case,  however,  a  discharge 
under  similar  circumstances  was  refused      20  Log.  Int.  260.     The 
oath  of  enlistment,  though  conclusive  upon  the  recruiting  officer,  is 
not  so  upon  the  courts.     Webb's  Case,   10  Pittsburg,  L.  J.  106. 
Contra,  United  States  v.  Taylor,  29  Leg.  Int.  284;   Jordan's  case, 


132  ARMIES— NAVY,    125,  126,    127.     [Art.  I.,  Sec.  8, 

11  Am.  L.  R.  749.  A  prisoner  of  war,  paroled  by  the  enemy,  is 
not  entitled  to  his  discharge,  although  a  minor,  until  exchanged. 
Henderson's  Case,  20  Leg.  Int.  181 ;  2  Brightly 's  Dig.  p.  24,  note. 

Each  individual  in  a  republic,  as  in  a  monarchy,  can  be  required 
to  perform  military  duty  without  his  consent,  if  the  demand  is 
made  by  a  proper  exercise  of  the  national  will.    Ex  parte  Coupland, 
What  right    26  Tex.,  394.     This  follows  from  the  unrestricted  power  to  declare 
dws  war       wan    1,3.    (Cites  Hurd.  on  Habeas  Corpus,  8;  United  States  v.  Bain- 
bridge;  Mass.  71;  Federalist,  187.)     "Militia"  is  not  synonymous 
with  "  arms-bearing  men ;"  arid  it  was  held  that  when  the  citizens 
130.        were  conscripted  into  the  "Confederate  States"    service  (under 
the  same  clauses),  they  had  no  right  to  choose  their  officers.  Id.  39G, 
397.     When  a  citizen  goes  into  the  army  raised  by  Congress,  either 
voluntarily,  or  in  obedience  to  the  law  requiring  him  to  do  so,  he 
does  this  as  a  citizen,  and  not  a  militia-man.     Id.   397.     Paschal's 
Annotated  Digest,  217-220,  p.  88-91. 

For  the  time  being,  the  right  of  the  State  government  over  him 
ceases.    The  opinion  endeavors  to  reconcile  this  view  with  the  doc 
trines  of  States  Rights,  and  held  the  Confederate  conscript  law  to 
be  constitutional  during  the  necessity.     Id.  397-405.     Mr.  Justice 
Bell  reviewed  the  41st,  29th,  45th  and  4th  numbers  of  the  Feder 
alist,  and  denied  the  constitutionality  of  the  law.     Id.  405-430. 
Define  the         This  power  has  led  to  the  establishment  of  the  War  Depart- 
•war  depart-   ment,  presided  over  by  a  Secretary  and  Assistant  Secretary  of  War, 
ent*  to  which  are  attached  the  following  departments,  the   heads  of 

which  have  the  rank  of  Brigadier-General,  viz. :  Adjutant- General, 
Quartermaster,  Subsistence,  Pay,  Medical,  Ordnance,  and  Bureau 
of  Military  Justice ;  there  are  four  Inspectors-General,  with  the 
rank  of  Colonel,  and  also  an  Engineer  and  Signal  Corps.  The  Chief 
of  Engineers  has  the  rank  of  Brigadier-General,  and  the  chief  signal 
officer  ranks  as  Colonel  of  cavalry. 

For  how      120.  BUT  NO  APPROPRIATION  TO  THAT  USES  HALL  BE  FOR  A 

long  may      LONGER  TERM  THAN  TWO  YEARS.     Congress  may  vote  the  supplies 
prLtunTbe  ?  ^or  ^u*  one  Fear  or  a  snorter  period,  but,  imperatively,  no  appro 
priation  shall  be  for  a  longer  period   than  two   years.     (Federalist, 
Nos.  26,  41  ;    2  Elliot's  Debates,  93,  308,  309.)      Story's  Const.  § 
1188,  1189.  1100. 

The  English  Parliament  is  not  thus  restricted.  1  Black.  Com. 
414,415;  Tucker's  Appendix,  271,  272,  379;  Federalist,  No.  41; 
Story's  Const.  §  1190. 

Navy?  [13.]  To  provide  and  maintain  a  navy. 

Define  to          127.  "  To  PROVIDE  AND  MAiXTAiN,"  in  this  clause,  is  about 
provide  and  equivalent  "  to  raise  and  support"  in  the  preceding  clause.    The  pres 
ent  splendid  navy  of  the  United  States,  with  its  immortal  history,  is 
122, 123.         the  best  refutation  of  the  arguments  which  were  urged  against  this 
necessary  branch  of  the  service.     See  Articles  of  Confederation, 
Art.  IX.  ante  p.  14.     See  Federalist,  Nos.  11,  24,  29,  41 ;  2  Elliot's 
Debates,  319-324;  Virginia  Resolutions  and  Report,  7th  and  llth 
128.        Jan.,  1800,  pp.  57-59;  5  Marshall's  Life  of  Washington,  523-531  ., 
Story's  Const.  §  1193-1198. 


01.14,  15.]  NAVY— MILITIA,    128,    129,    130.  133 

128.  "NAVY;"  [Navigation — from  Navis,  a  ship.] — "  To  build  Define  navy, 
and  equip  a  navy."     Articles  of  Confederation,  ante   Art.  IX.  p. 

14.  The  present  words  are  more  broad  and  appropriate.  Story's 
Const.  §  1194.  It  practically  means  not  only  to  build  and 
equip,  but  to  organize,  provide,  and  maintain  a  naval  department,  127. 
naval  school,  coast  survey,  naval  armament,  merchant  marine;  and 
it  is  the  strongest  arm  of  our  harbor  defenses,  as  well  as  a  pow 
erful  engine  of  attack  and  offensive  warfare.  1  Erightly's  Digest, 
657-680;  2  Id.,  315-387. 

It  is  the  natural  result  of  the  sovereignty  over  the  navy  of  the 
United  States,  that  it  should  be  exclusive.  Whatever  crimes, 
therefore,  are  committed  on  board  of  public  ships  of  war  of  the  110, 116. 
United  States,  whether  they  are  iu  port  or  at  sea,  are 
exclusively  cognizable  and  punishable  by  the  government  of  the 
[Jnited  States.  The  public  ships  of  sovereigns,  wherever  they  may 
be,  are  deemed  to  be  extra-territorial,  and  enjoy  the  immunities 
from  the  local  jurisdictions  belonging  to  their  sovereign.  (See 
United  States  v.  Bevans,  3  Wheat.  336,  390.  The  Schooner 
Exchange,  7  Or.  116.)  Story's  Const.  §  1168. 

This  grant  of  power  has  been  developed  in  the  organization  of  a 
Navy  Department,  over  which  presides  a  Secretary  of  the  Navy 
(at  present  GIDEON  J.WELLES),  an  Assistant  Secretary  of  the  Navy, 
and  other  appropriate  officers  of  the  bureau. 

The  ranks  of  the  Naval  officers  are :  Admiral,  Vice-Admiral, 
Commodore,  Captain,  Commander,  Lieut.-Commander,  Lieutenant, 
Master,  Ensign,  Midshipman.  2  Brightly's  Digest,  315,  316,  318; 
UStat,  515,  516. 

[14.1  To  make  rules  for  the  government  andregula-  HOW  to 

•£.113          i  i  .r  g°vern  the 

tion  or  the  land  and  naval  iorces.  forces? 

129.  "  To  MAKE  RULES,"    in  this  connection,  means  to  pre-  Define  to 
scribe  the  rules  of  conduct ;  that  is,  to  enact  the  necessary  laws  make  rule8  ? 
"  for  the  government  and  regulation  of  the  land  and  naval  forces."  133,  238,  240. 
This  Congress  has  done  by  the  enactment  of  the  rules  and  articles 

of  war,  which  are  always  in  the  hands  of  military  and  naval  offi-  120-12T. 
cers,    and  have   become   exceedingly   familiar   to   our   volunteer 
civilians  during  the  late  war. 

For  these  "  Rules  "  see  1  Brightly's  Dig.  pp.  73-83,  ch.  XVI. 
Arts.  I-CL;  2  Brightly,  24-27  ;  2  St.  359;  12  St.  316,  330,  339,  354, 
589,  595,  598,  735,  754;  13  St.  145,  356,  489. 

[15.]  To  provide  for  calling  forth  the  militia  to  exe- What  power 
cute  the  laws  of  the  Union,  suppress  insurrections,  militia  ? 
and  repel  invasions. 

130.  MILITIA. — The  national  soldiery  of  a  country,  as  distin-  Define  mili- 
guished  from  a  standing  military  force,  consisting  of  the  able-bodied  tia? 

male  inhabitants  of  a  prescribed  age,  who  are  enrolled,  officered,  mus 
tered,  and  trained  according  to  law,  but  are  called  into  active  service  234,235. 
only  on  emergent  occasions,  such  as  to  suppress  insurrections  and 
repel  invasions,  for  the  public  defense.     (Act  of  Congress,  8  May, 


134 


NAVY— MILITIA,    130,    131,    132.    [Art.  I.,  Sec.  8, 


1792;  1  Kent's  Com.  262,  266.)    Burrill's  Law  Die.,  MILITIA;    1 
Brightly's  Dig.,  619,  624,  and  notes;   2  Id.,  299  ;   525-597. 
189.  The  act  of  1795,  which   confers  power  on  the  President  to  call 

forth  the  militia  in  certain  exigencies,  is  constitutional ;  and  the 
President  is  the  exclusive  and  final  judge  whether  the  exigency  has 
arisen.  Martin  v.  Mott,  12  Wh.  19;  Vanderheyden  v.  Young,  11 
Johns.  150.  The  power  to  repel  invasion  includes  the  power  to 
provide  against  the  attempt  or  danger  of  invasion.  Martin  v.  Mott, 

234,235.  12  Wh.  19;  6  Cond.  417.  Those  called  out  according  to  law  are 
subject  to  court-martial.  (Houston  v.  Moore,  3  Wh.  433.)  Marun 
v.  Mott,  6  Cond.  421;  Moore  v.  Houston,  3  Serg.  and  R.  167;  1 
Kent's  Com.  267  :  Bates  on  Habeas  Corpus,  5th  July,  1861.  The  Presi 
dent  cannot  exercise  this  power.  Bates,  18th  April,  1861. 

What  arc  the      It  belongs  exclusively  to  the  President  to  judge  when  he  has  the 


president's 
powers  ? 


235. 


"When  do 
the  militia 
become 
national  ? 


authority  to  call  forth  the  militia,  and  his  decision  is  conclusive 
upon  all  others.  Martin  v.  Mott,  12  Wheat.  19;  1  Kent's  Com. 
279;  and  see  the  same,  244-250;  Story's  Const.  §  1210-1215;  Bates 
on  Habeas  Corpus,  5th  July,.  1861. 

And  also  upon  the  Courts  of  the  United  States.  Luther  v. 
Borden,  7  How.  1. 

The  power  is  to  be  exercised  upon  sudden  emergencies,  upon 
great  occasions  of  State,  and  under  circumstances  which  may  be 
vital  to  the  existence  of  the  Union.  Luther  v.  Borden,  How.  18, 
19,  31,  32;  Story's  Const.  §  1211. 

The  President  may  make  his  requisitions  directly  upon  the  ex 
ecutives  of  the  States,  or  by  orders  directed  to  any  subordinate 
officers  of  the  militia.  Houston  v.  Moore,  5  Wheat.  15-16;  see  1 
Kent's  Com.  277-279. 

The  militia  is  the  militia  of  the  States,  respectively,  and  not  of  the 
United  States.  When  called  into  the  service  of  the  General  Gov 
ernment,  they  become  national  militia  after  they  are  mustered  at 
the  place  of  rendezvous  designated  by  national  authority,  and  not 
until  then.  (Houston  v.  Moore,  5  Wheat;  Martin  v.  Mott,  12 
Wheat.  19.) 

Define  laws       131.  LAWS  OF  THE  UNION. — This  Constitution,   and  the  laws 

of  the  Union.  of  the  United  States  which  shall  be  made  in  pursuance  thereof,  and 

all  treaties  made,  or  which  shall  be  made,  under  the  authority  of 

233-240.         the  United  States,  shall  be  the  supreme  law  of  the  land.     Art.  6, 

cl.  2.     The  laws  of  the  Union  are  of  course  this  supreme  law;  and 

the  execution  of  this  power  is  coextensive  with  the  whole  subject 

of  constitutional  legislation.     But  the  exigency  can  only  arise  when 

there   is   an   actual  or   threatened  resistance  to  the  laws  of   the 

United  States.     See  Bates  on  Habeas  Corpus,  5th  July,  1861. 

132.  INSURRECTIONS. — It  has  often  been  contended  that  insur 
rection  here  only  means  that  "  domestic  violence  "  mentioned  in 
the  fourth  section  of  the  fourth  article,  and  hence  that  the  power 
can  only  be  exercised  when  the  legislature  or  executive  of  a  State 
demands  it. 

But  insurrection  seems  to  have  been  treated  as  resistance  to 
law  by  a  force  too  strong  for  the  ordinary  posse  comilatus.  (2 
Elliot's  Debates,  292-309;  Federalist,  No.  29.)  Story's  Coast. 


Define  in- 
eurrfction. 

234,  235. 


01.  15,  1C.]  MILITIA,  133,  134.  135 

8  1201.     It  doubtless  has  reference  to  the  violences  of  a  domestic 
faction,    or   sedition,    as   contradistinguished   from   invasion  by  a        235. 
foreign  enemy.     Id.     And  the  insurrection  may  as  well  be  against 
United  States  &a  State  authority. 

In  the  Southern  States,  the  word  "  insurrection  "  was  almost 
exclusively  confined  to  "  risings  "  by  the  slave  population. 

Insurrection   is    synonymous   with    sedition,    rebellion,    revolt. 
Webster's  Die.   REBELLION. 


.  ''INVASIONS  "  is  here  doubtless  coupled  with  the  guaranty  Define  inva- 
of  the  United  States  "  to  protect  every  State  against  invasion."  sicm  ? 
(Art.  IV.  sec  4.)     But  the    "  invasion  "  would  be  none  the  less  so  2H  ^5> 
if  invited  by  State  authorities,  or  if  no  call  should  be  made  by  the 
legislature  or  governor  of    an   invaded  State.     The  act  of  1795 
seemed  to  restrict  the  idea  to  invasions  by  a  foreign  enemy,  as  in 
the  wars  of  1812  and  1846.     1  St.  424;   1  Brightly's  Dig.  440  and 
notes. 

[16.]  To  provide  for  organizing,  arming,  and  disci-  What  is  th« 

plinino-  the  militia,  and  for  governing  such  part  of  them  organizing 

.     .  /•  TT    •      j  the  militia? 

as  may  be  employed  in  the  service  or  the  United 
States  ;  reserving  to  the  States,  respectively,  the  ap 
pointment  of  the  officers  and  the  authority  of  training 
the  militia  according  to  the  discipline  prescribed  by 
Congress. 

134.  This  "ORGANIZING,  ARMING,  AND  DISCIPLINING  THE  MILITIA,"  What  does 
would  include  the  whole  legislation  upon  the  subject.     But  prac-  organizing 
tically  the  power  has  not  been  fully  exercised  in  time  of  peace.     It  &c-'  indutle? 
has  indeed  generally  been  left  to  the  States,  except  as  to  the  tactics 
and  the  distribution  of  arms,  by  quotas  among  the  States.    See  Act 
of  8th  May,  1792,  ch.  33,  1  St.  271  ;  Act  of  12th  May,  1820,  ch.  97  ; 
Act  of  LS21,  ch.  68,  3  St.  577  ;  Story's  Const.  §  1208  ;   1  Brightly's 
Dig.  619-624.     2  Id  299  and  notes.     MILITIA  here  means  the  body  Define  mili- 
of  arms-bearing  citizens,  as  contradistinguished  from  the  regular  tia  ? 
army.     Webster's  Die.  MILITIA.     See  Coupland,  ex  parte,  26  Tex. 
411,  412.     For   the   discussions  upon   this  subject,  see  2  Elliot's 
Debates,  301-318  ;  Luther   Martin,  4  Elliot's  Debates,  34,  35.     If 
Congress  neglect  to  exercise  this   power,  the  States  have  a  con 
current  right  to  do  so.  Houston  v.  Moore,  3  Sergt.  and  Rawle,  369. 
See  Houston  v.  Moore,  5  Wheat.  1-56.     And  see  Luther  v.  Borden, 
7  Hov\r.  1  ;   Story's  Const.  §  1  207. 

The  militia  of  the  several  States  are  not  subject  to  martial  law  is  conscrip- 
unless  they  are  in  the  actual  service  of  the  United  States.     Mills  ti°n  consti- 
v.  Martin,  19  Johns.  7.     And  this  does  not  commence   until  their  tution"1? 
arrival  at  the  place  of  rendezvous.       Houston  v.  Moore.  5  \Vh.  20.  us,  1-24. 
So  far  as  Congress  has  provided  for  organizing  the  militia,   the 
legislative  powers  of  the  States  are  excluded.     Id.  51;  Houston  v. 
Moore,  3  S.  &  R.  IG9.     But  a  State  legislature  may  lawfully  pro 
vide  for  the  trial,  by  courts-martial,  of  drafted  militia  who  shall  ro- 


136  MILITIA— DISTRICT,    134,     135.   [Art.  I.,  Sec.  8, 

fuse  or  neglect  to  march  to  the  place  of  rendezvous,  agreeably  to  the 
orders  of  the  Governor,  founded  on  the  requisition  of  the  President 
of  the  United  States.  Id.  The  act  of  the  Congress  of  the  United 
States,  of  the  3d  March,  1863,  12  Stat.  at  Large,  §  172,  declared, 
that  all  citizens  of  the  United  States,  &c.,  "  are  hereby  declared 
to  constitute  the  national  forces,  and  shall  be  liable  to  perform  mili 
tary  duty  in  the  service  of  the  United  States,  when  called  out  by 
the  President  for  that  purpose."  In  New  York,  it  has  been  de 
termined,  that  this  act  is  unconstitutional,  on  the  ground  that  ic 
attempted  to  create  a  national  militia,  a  power  not  granted  to  the 
Federal  Government,  which  is  only  empowered  to  raise  an  army  and 
navy;  whilst  the  militia  is  but  a  State  force,  though  liable  to  be 
called  into  the  service  of  the  United  States,  by  the  President,  in 
case  of  emergency.  The  People  v.  Stephens,  before  McCuun,  J., 
at  Chambers,  14th  July,  1863.  In  Pennsylvania,  however,  Cad- 
wallader,  J.,  decided  that  the  act  was  constitutional.  Antrim's 
Case,  20  Leg.  Int.  200  ;  2  Brightly's  Dig.  40,  note  a;  Kneedler  v. 
Lane,  9  Wright,  238.  See  ex  parte  Coupland,  26  Tex.  394,  where 
it  was  held  that  a  conscript  law,  which  declared  all  men  between 
the  ages  of  17  and  50  years,  was  constitutional. 

What  Is  the       135.  When  called  out,  they  are  subject  to  the  rules  and  articles 
power  over   Of  war?   save  on]y  tna^  when  tried  by  court-martial,  the  court 
li   shall  be  composed  of  militia  officers.  (1  Brightly's  Dig.  p.  622,  sec. 
4;  p.  82,  sec.  270.)    Atty.  General  Bates,  18th  April,  1861. 

The  obvious  theory  of  the  Constitution  and  law  is,  that  whilst 
Congress  shall  prescribe,  by  general  rules,  an  uniform  militia  sys 
tem  for  the  States,  securing  the  enrollment  of  all  the  able-bodied 
white  male  citizens,  and  maintaining  the  system  of  discipline  and 
field  exercise  observed  in  the  regular  army  (1  Brightly,  621),  yet 
that  the  details,  militia  organization,  and  management  shall  be  left 
to  the  State  governments,  requiring  that  only  an  annual  report  of 
the  condition  of  the  service  shall  be  left  to  the  President.  Idem. 

This  power  was  first  exercised  to  suppress  the  insurrection  in 
Pennsylvania,  in  1794.  (5  Marshall's  Life  of  Washington,  ch.  8, 
pp.  576-592  ;  2  Pitk.  His.  ch.  23,  pp.  421-592  ;  the  next,  during 
the  war  of  1812,  with  Great  Britain ;  and  the  last  was  the  memorable 
occasion,  to  suppress  the  rebellion,  on  the  13th  of  April,  1861,  and 
during  its  continuance.  See  the  Act  of  1795,  1  St.  424; 
Houston  v.  Moore,  3  Sergt.  &  R.  169;  and  S.  C.  5  Wheat.  60; 
Martin  v.  Mott,  12  Wheat.  19;  Duffield  v.  Smith,  3  Sergt.  &  li.  590; 
Yanderheyden  v.  Young,  11  Johns.  150. 

Where  has        [l^-]  To  exercise  exclusive  legislation  in  all  cases 

congress  ,  IT./ 

exclusive      whatsoever  over  such  district  (not  exceeding  ten  mdes 

^f ^  \  O 

square),  as  may,  by  cession  of  particular  States  and  the 
acceptance  of  Congress,  become  the  seat  of  the  Gov 
ernment  of  the  United  State*,  and  to  exerciso  like 
authority  over  all  places  purchased  by  the  consent  of 
the  legislature  of  the  State  in  which  the  sune  slnll  be, 


01.  16,  17.]  DISTRICT,  FORTS,    136,    137.  137 

for  the  erection  of  forts,  magazines,  arsenals,  dock 
yards,  and  other  needful  buildings.    And, 

135.  "EXCLUSIVE  LEGISLATION  OVER  THE    DISTRICT."  —  This  By  what 
provision  was  executed  by  che  cession  of  the  District  of  Columbia  states  was 
by  Maryland  and  Virginia  ;  and  the  legislation  by  Congress  over 
the  inhabitants  and  public  property  there  ever  since.  .  See  1  Bright 
ly  's  Dig.  p.  233-252.    Congress  retroceded  to  Virginia,  Alexandria 
and  the  surroundings,   so  that  the  District  is,  in  fact,  only  about 
seven  miles  square.    For  the  reasons  for  this  exclusive  government, 
see  the  Federalist,  No.  43;   2   Elliot's    Debates,  92,  321,  322,  326; 
Rawle's  Const,  ch.  9,  p.  112,  113.     See  2  Brightly's  Dig.  233-252. 

The  site  was  selected  by  President  WASHINGTON,  after  whom 
the  capital  was  named.  The  inhabitants  are  citizens  of  the  United 
States  ;  and  might  constitutionally  have  a  local  legislature.  See 
the  Federalist,  No.  43  ;  United  States  v.  Bevans,  3  Wheat.  336,  388. 

In  its  exercise,  Congress  acts  as  the  legislature  of  the  Union. 
Cohens  v.  Virginia,  6  Wheat.  424.  The  elective  franchise  allows 
no  distinction  on  account  of  race  or  color.  14  Stat.  375. 


This  includes  the  power  of  taxation.     Loughborough  v.  Define  the 
Blake,  5  Wh.  317.     The  charter  of  the  City  of  Washington  did  not  powers? 
authorize  the  corporation  to  force  the  sale  of  lottery  tickets  in  136  13<f 
States  whose  laws  prohibited  such  sales.     Cohens  v.  Virginia,  6  '  ' 
Wh.  264. 

The  right  of  exclusive  legislation  carries  with  it  the  right  of 
exclusive  jurisdiction.  United  States  v.  Coryell,  2  Mas.  60  91  ; 
6  Opin.  577.  Even  to  recapture  by  military  force.  9  Op.  521.  This 
second  clause  binds  all  the  United  States.  (Cohens  v.  Virginia, 

6  Wheat.  224.)    Story's  Const.  §  1229. 

Congress  has  the  right  to  punish  murder  in  a  fort,  or  other  Define  the 
place  within  its  exclusive  jurisdiction  ;  but  no  general  right  to  pun-  jurisdiction 
isli  murder  committed  within  any  of  the  States.  Idem.  The  power  over 
to  legislate  in  these  places,  ceded  by  a  State,  carries  with  it,  as  an 
incident,  the  right  to  make  that  power  effectual.  Cohens  v.  Vir 
ginia,  6  Wheat.  428.  Congress  does  not  act  as  a  local  legislature, 
but  exercises  this  particular  power,  like  all  other  powers,  in  its 
h  h  character  as  the  legislature  of  the  Union.  Id.  ;  Story's 
Const.  §  1234.  But  the  purchase  of  lands  by  the  United  States  for 
public  purposes,  within  the  territorial  limits  of  a  State,  does  not  of 
itself  oust  the  jurisdiction  or  sovereignty  of  such  State,  over  the 
lands  so  purchased.  United  States  v.  Coryell,  2  Mas.  60.  The 
Constitution  prescribes  the  only  mode  by  which  they  can  acquire 
land  as  a  sovereign  power  ;  and,  therefore,  they  hold  only  as  an 
individual  when  they  obtain  it  in  any  other  manner.  Common 
wealth  v.  Young,  Brightly,  302  ;  People  v.  Godfrey,  17  Johns.  225  ; 
United  States  v.  Traver,  2  Wh.  Cr.  Gas.  490  ;  People  v.  Lent,  Id. 
548.  It  seems,  however,  that  the  States  have  not  the  right  to 
tax  lands  purchased  by  the  United  States  for  public  purposes, 
although  the  consent  of  the  legislature  may  not  have  been  given 
to  the  purchase.  United  States  v.  Weise,  2  Wall.  Jr.  72.  And  see 

7  Opin.  628.     And  see   Commonwealth  v.   Cleay,    8  Mass.  72; 


138  GENERAL   POWERS,    138.          [Art.  I.,  Sec.  2. 

Rawle's  Const,  ch.  27,  p.  238 ;  Sergeant's  Const,  ch.  28   [ch.  30]  ; 
1  Kent's  Com.  Lect.  19,  pp.  402-404;  Story's  Const.  §  1222-1224. 

After  a  cession  by  a  State,  it  cannot  take  cognizance  of  any  acts 
done  in  the  ceded  places  after  the  cession.  And  the  inhabitants 
of  those  places  cease  to  be  inhabitants  of  the  State,  and  can  no 
longer  exercise  any  civil  or  political  rights  under  the  laws  of  the 
State.  But  if  there  has  been  no  cession,  the  State  jurisdiction  still 
remains.  (The  People  v.  Godfrey,  17  Johns.  225;  Commonwealth 
v.  Young,  1  Hall's  Journal  of  Jurisprudence,  p.  47 ;  1  Kent's  Com. 
Lect.  19,  p.  403.  404  ;  ch.  28  [ch.  30]  ;  Rawle's  (Const,  ch.  27,  p.  238- 
240;)  Story's  Const.  §  1127. 

Whatarethe      [18-]  To  make  all  laws  which  shall  be  necessary  and 

general  pow-  „  . 

em  of  (jon- proper  for    carrying    into    execution    the  foregoing 
"*«.       powers,  and  all  other  powers  vested  by  this  Constitu 
tion  in  the  Government  of  the  United  States,  or  in  any 
department  or  office  thereof. 

Define  nee-  13§.  This  does  not  mean  absolutely  necessary,  nor  does  it 
essary  ?  imply  the  use  of  only  the  most  direct  and  simple  means  calculated 
2G9,  253,  259.  to  produce  the  end.  Commonwealth  v.  Lewis,  6  Binn.  270-1  ; 
McCulloch  v.  Maryland,  4  Wh.  413;  Metropolitan  Bank  v.  Van 
Dyck,  27  N.  Y.  Rep.  438-9.  And,  therefore,  Congress  had  power 
to  charter  the  Bank  of  the  United  States,  as  a  necessary  and  useful 
instrument  of  the  fiscal  operations  of  the  government.  Id.  3U>, 
422.  So,  also,  Congress  has  power,  under  this  general  authority,  to 
provide  for  the  punishment  of  any  offenses  which  interfere  with, 
obstruct,  or  prevent  commerce  and  navigation  with  foreign  States 
and  among  the  several  States,  although  such  offenses  may  be  done 
on  land.  United  States  v.  Coombs,  12  Pet.  78.  Necessary  and 
proper  are  to  be  considered  synonymous  terms.  Metropolitan  Batik 
v.  Van  Dyck,  27  N.  Y.  Rep.  439.  There  is  no  warrant  for  saying 
that  the  powers  shall  be  construed  strictly.  A  reasonable  import 
of  terms  should  be  given.  (Martin  v.  Hunter,  1  Wh.  304.  326-7.) 
Metropolitan  B;»nk  v.  Van  Dyck,  27  N.  Y.  Rep.  413,  415.  See 
Federalist,  33,  44. 

Is  this  a  This  section  is  among  the  powers  of  Congress,  not  the  limita- 

]>O\VIT  <.r  a  tions;  it  enlarges  arid  adds  to,  but  does  not  diminish  or  lessen  the 
limitation?  powers>  (McCulloch  v.  Maryland,  4  Wh.  413.)  Metropolitan  Bank 
9J,  94.  v.  Van  Dyck,  27  N.  Y.  Kep.  443.  Under  this  power,  Congress 

may  exempt  the  national  securities  from  taxation.  (The  People  v. 
The  Tax  Commissioners,  2  Black,  620.)  Metropolitan  Bank  v.  Van 
Dyck,  27  N.  Y.  Rep.  444.  Where  the  power  is  given  to  Congress, 
it  must  judge  of  the  means  necessary  to  effect  the  end.  The  end 
must  be  legitimate.  Metropolitan  Bank  v.  Van  Dyck,  27  N".  Y. 
Rep.  445,  450 ;  The  United  States  v.  Marigold,  9  How.  5GO.  Under 
clause  4.  and  the  power  to  coin  money,  Congress  has  the  power  to 
82  83  make  the  notes  of  the  Government  a  legal  tender.  Metropolitan. 

'  Bank  v.  Van  Dyck,  27  N.  Y.  Rep.  454. 

This  power  was  greatly  assailed.  See  Federalist,  42,  43,  44;  1 
Elliot's  Debates,  293,  294,  300;  2  Id.  196,  342;  Tuck.  Black. 


Cl.  18.]  IMPLIED   POWERS,    138.  139 

Com.  Appendix,  286,  287  ;  Hamilton  on  Banks,  1  Hamilton's  Works, 
121;  McCulloch  v.  Maryland,  4  Wheat.  406,  407,  419;  Cal- 
houn's  Essay  on  the  Constitution;  Story's  Const.  Ch.  XXIV.  § 
1236-1258. 

•'  POWER"  is  the  ability  or  faculty  of  doing  a  thing ;  and  employ-  Define 
ing  the  means  necessary  to  its  execution;  the  right  to  make  laws;  P°wer? 
Story's  Const.  §  1237,  1241.  71,93. 

Powers  given  by  the  Constitution,  imply  the  ordinary  means  of 
execution.  (McCulloch  v.  Maryland,  4  Wheat.  409  ;  4  Elliot's  De 
bates,  217-221.)  Story's  Const.  1237. 

"Expressly  delegated,"  was  in  the  Articles  of  Confederation.        269. 
(Ante  p.  9,  Art.  II).     Story's  Const.  §  1238. 

The  plain  import  of  the  clause  is,  that  Congress  shall  have  all  the  What  is  the 
incidental  and  instrumental  powers  necessary  and  proper  to  carry  import  of 
into  execution  all  the  express   powers.     It  neither  enlarges  any 
power  specifically  granted,  nor  is  it  a  grant  of  any  new  power  to 
Congress.     Story's  Const.  §  124'?.     Some  have  gone  further  than 
this.     Governor  Randolph,  2  Elliot's  Debates,  342 ;   Mr.  Gerry  in 
1791,  4  Elliot's  Debates,   225,  227.     Ex  parte  Coupland,   26  Tex. 
415,  416. 

The  power  must  be  expressed,  or  be  an  incident.  Virginia  Report 
and  Resolutions,  Jan.  1800,  p.  33,  34;  1  Tuck.  Black.  Com.  App. 
287,  288;  President  Munroe's  Exposition  and  Message,  4th  May, 
1822,  p.  47. 

The  degree  of  necessity  cannot  control.  1  Hamilton's  works, 
118.  120. 

"NECESSARY  "  often  means  no  more  than  needful,  requisite,  inci-  Define  nee 
dental,  useful  or  conducive  to.     Story's  Const.  §  1248.  cssury? 

The  word  "  necessary  "  has  no  fixed  character  peculiar  to  itself,  146-149, 162- 
as  in  "  ab*outeltj  necessary  for  executing  its  inspection   laws,"    as  ltji 
contrasted  with  this  necessary  and  proper,  proves."     Story's  Const. 
§  1248-1250.     See  McCulloch  v.  Maryland,  4  Wheat,  413-418. 

"PROPER"  has  a  sense,  admonitory  and  directory.     It  requires  Define 
that   the    means   should   be    bona  fide   appropriate  to   the   end.  proper? 
McCulloch  v.  Maryland,  4  Wheat.  419,  420;  Story's  Const.  §  1253. 

Among  the  necessarily  incidental  powers  may  be  classed  the  right  What  may 
to  acquire  and  govern  territory;  the  right  to  contract  and  sue  ;  to  ))c^la^sc,di 
punish  offenders  on  board  ships;  to  protect  collectors  of  revenue,  fSuHual8 
men  in  the  postal  service,  and  army  contractors.     (Dugan  v.  The  powers  ? 
United  States,  3  Wheat.  173,  179,  180;  United  States  v.  Tin  gey,  23-2-4. 
5    Peters,    115;   United   States  v.    Bevans,  3   Wheat.    388;     The 
Exchange,  7    Cranch,  116;  S.  C.,  2  Peters,  439;  Osborn  v.  Bank 
of  United  States,  9  Wheat,   365,  366);  Story's  Const.  §  1256-1258, 
and  note  2. 

The  law  must   be  necessary  and  proper.     As  to  necessary,  it       269. 
must  be  borne  in  mind  that  no  power  can  execute  itself.        *         * 
The   means    are  auxiliary  powers        *          *    ;  that    is    implied 
powers.         ******** 

But  the  law  must  also  be  proper  as  well  as  necessary.  *  * 
That  is,  even  implied  powers  are  subject  to  important  conditions, 
when  used  as  means  to  carry  powers  or  rights  into  execution.  * 
They  must  be  carried  into  execution  so  as  not  to  injure  others;  and 


140  AFRICAN  SLAVE-TRADE,    139.     [Art.  I.,  Sec.  9, 

as  connected  with  and  subordinate  to  this,  that  where  the  implied 
powers  or  means  used  come  in  contact  with  the  implied  powers  or 
means  used  by  another,  in  the  execution  of  the  powers  or  rights 
vested  in  it,  the  less  important  should  yield  to  the  more  important, 
the  convenient  to  the  useful,  and  both  to  health  and  safety ;  because 
it  is  proper  they  should  do  so.  (Calhoun's  Discourse  on  the  Const.) 
124.  Ex  parte  Coupland,  26th  Tex.  416,  417.  The  learned  Judge  also 
quotes  to  the  same  effect  from  McCulloch  v.  Maryland. 

The  question  is  not,  whether  or  not  the  power  to  raise  armies  is 
granted ;  but  whether  to  raise  them  by  conscription  is  implied. 
(Mr.  Munroe's  plan  in  1814  contrasted.)  Id. 

what  is  the      SEC.  IX. — [l.]  The  migration  or  importation  of  such 

Inhibition  as  .,     ,        ~  •      •  i     -n      i  •    i 

to  the  AM-  persons  as  any  of  the  States  now  existing  shall  think 
trade?™     proper  to  admit,  shall  not  be  prohibited  by  the  con 
gress  prior  to  the  year  one  thousand  eight  hundred 
and  eight ;  but  a  tax  or  duty  may  be  imposed  on  such 
importation,  not  exceeding  ten  dollars  for  each  person. 

Define  mi-  139.    MIGRATION   OR   IMPORTATION  OF    PERSONS. — "Migration" 

gration?       here,  doubtless,  means  immigration;  but  as  connected  with  "im 
portation,"  it  is  used  nearly  synonymously  with  that  term ;   and 
98.        both  have  reference  to  the  "  PERSONS  "  who  formed  the  basis  of  the 
African  slave-trade.     This  trade  was  abolished  011  the  2d  of  March, 
1807.     2    St.  428;    1   Brightly's  Dig.  837.     Those   who  wish  to 
24.        consult  the  statutes  on  this  subject,  and  the  luminous  decisions 
upon  a  •  question  now  mostly  obsolete  in  the  United  States,  are 

85-92.  referred  to  Brightly's  Dig.,  chapter  "  SLAVE-TRADE,"  vol.  1,  p.  835, 

and  notes  thereon  ;  Scott  v.  Sandford,  19  How.  397  ;  1  Kent's 
Com.  Lect.  9,  pp.  192-203  ;  Cobb  on  Slavery ;  Story's  Const.  §  1331, 
1334;  2  Pitk.  History,  ch.  20,  pp.  261,  262;  2  Elliot's  Debates, 
335,  336  ;  3  Id.  97,  98,  250,  251 ;  Federalist,  42. 

This  section  has  no  application  to  the  State  governments.  But 
ler  v.  Hopper,  1  Wash.  c.c.  499. 

Define  per-       The  word  "PERSON  "  may  fairly  be  said  to  refer  to  an  imported 

son  ?  African,  and  bears  some  analogy  to  the  same  word  in  Art.  I.,  sec. 

24,  35,  46.      2,  clause  3. 

Migration  seems  appropriately  to  apply  to  voluntary  arrivals,  as 
importation  does  to  involuntary  arrivals ;  and  so  far  as  an  excep 
tion  from  a  power  proves  its  existence,  this  proves  that  the  power 
to  regulate  commerce  applies  equally  to  the  regulation  of  vessels 
employed  in  transporting  men,  who  pass  from  place  to  place  volun- 

85-92.  tarily,  as  to  those  who  pass  involuntarily.     (Gibbons  v.  Ogden,  9 

Wheat.  206-230.)     Story's  Const.  1387. 

when  mny  [2.]  The  privilege  of  the  writ  of  habeas  corpus  shall 
or  /K«!/«ge  not  be  suspended,  unless  when  in  cases  of  rebellion  or 
invasion  the  public  safety  may  require  it. 


Cl.  1,  2.]  HABEAS   COKPTJS,    140,    141.  141 

140.  The  PRIVILEGE  of  the  writ  must  here  mean  the  right  to  Define  priv- 
the  writ.     See  Burrill's  Law  Die.,  PRIVILEGE.  iles«  ? 

The  power  to  issue  the  writ  is  not  the  privilege ;  to  ask  for  it.  is        141. 
Attorney-General  Bates  on  Habeas  Corpus,  5th  July,  1861. 

This  privilege  the  President  may  suspend  in  time  of  such  a       ISO. 
rebellion.     Id.     Only  in  the  cases  contemplated  by  the  act  of  Con 
gress  relative  to  rebellion.     Id. 

It  results  that  the  President  is  not  obliged  to  answer  a  writ  of  Can  the 
habeas  corpus.    Id.    He  is  not  answerable  to  the  judiciary  as  Presi-  Pre**<^?iLj 
dent.     Id.     The  courts  cannot  revise  his  political  actions.     Id.          USP204.  1 

141.  HABEAS  CORPUS — No  doubt  it  means  here  to  have  the  Define 
body  ;  or  the  writ  then  known  as  the  habeas  corpus,  ad  faciendum,  Ifabeax 
subjiciendum,  et  recepiendum,  to  do,  submit  to,  and  receive  whatso-  Corpus? 
ever  the  judge  or  court  awarding  the  writ  shall  adjudge  in  that        140. 
behalf.     3  Bl.  Com.  131 ;  2  Kent's  Com.  22 ;  Steph.  Com.  135;  Bur- 
rill's  Law  Die.,  HABEAS  CORPUS;  Story's  Const.  §  1339.     These 
authors  give  the  several  writs. 

As  a  co-ordinate  power  of  the  government,  the  President  could 
not  be  made  amenable  to  this  writ,  for  military  arrests  made  dur 
ing  the  rebellion.  Id. 

For  the  meaning  of  the  term  Habeas  Corpus  resort  must  be  had  where  must 
to  the  common  law  ;   but  the  power  to  award  the  writ,  by  any  of  we  lo°k  (or 
the  courts  of  the  United  States,  must  be  given  by  written  law.  Jfont 
(Bollman,  Swartwout's  Case.  4  Cr.  93) ;  Bates  on  Habeas  Corpus ; 
Story's  Const.  §  1339.     And  the  writ  means  the  writ  ad  subjicien- 
dum.     (Luther  v.  Borden,  7  Howard,  1;  Fleming  v.  Page,  9  How. 
615;  Cross  v.    Harrison,  10  How.   189;   Santissima   Trinidad,    7 
Wheat.  305 ;  Martin  v.  Mott,  12  Wheat.  29.  Id. 

It  matters  little  whether  it  be  called  the  peace  or  war 
power.  Id. 

It  is  a  writ  of  right,  which  every  person  is  entitled  to,  ex  merito 
justitia.  (4  Inst.  290.)  2  Kent's  Com.  Lect.  XXIV.  p.  26.  This 
lecture  fully  discusses  the  subject.  And  see  Yates  v.  Lansing,  5 
Johns.  282.  and  6.  Id.  387  ;  Story's  Const. 

The  writ  was  never  suspended  except  by  the  act  of  12th  March,  When  was  it 
1803,  12    St.  755;  2  Brightly's  Dig.  196;  Story's  Const.  §  1342  ;  first  sus- 
2  Jeff.  Cor.  274,  291,  344.  '  pended? 

It  would  seem,  as  the  power  is  given  to  Congress  to  suspend  the 
writ  in  cases  of  rebellion  or  invasion,  that  the  right  to  judge,  140. 
whether  the  exigency  had  arisen,  must  exclusively  belong  to  that 
body.  (Martin  v.  Mott,  12  Wh.  19.)  Story's  Const.  1342.  This 
is  denied  in  the  opinion  of  Attorney-General  Bates  to  President 
Lincoln. 

The  federal  courts  have  power  to  issue  the  writ  of  habeas  corpus  when  may 
only  when  necessary  in  aid  of  their  jurisdiction,  in  a  case  pending,  the  Federal 
Ex  parte   Everts,   7  Am.   L.  R.  79;    overruling  United  States  v.  J£eu ^f116 
Williamson,  4  Id.  11.     The  case  of  a  father  claiming  the  custody  of 
an  infant  child,  is  not  one  in  which  a  habeas  corpus  can  issue,  by  a 
court  of  the  United  States,  as  ancillary  to  the  exercise  of  its  juris 
diction.     Id.     Nor  can  a  circuit  court  issue  such  a  writ,  although 
the  father  be  a  citizen  of  another  State,  as  the  matter  in  dispute  is 
incapable  of  a  pecuniary  estimation.     Id.     A  habeas  corpus  issued 


142  HABEAS    COEPUS,    141.  [Art.  L,  Sec.  9. 

by  a  State  court  has  no  authority  within  the  limits  of  the  sove 
reignty  of  the  United  States.     If  served  on  a  marshal  having  a 
What  is  the  prisoner  in   custody,   under  authority  of  the  United  States,   lie 
power  of  the  should,  by  a  proper  return,  make  known  the  authority  by  which 
Cinirts?        ^e  holds  him  ;  but,  at  the  same  time,  it  is  his  duty  not  to  obey  the 
State  process,  but  to  execute  that  of  the  United  States.     Ableman 
v.  Booth,  21  How.  506.     The  federal  courts  have  power  to  apply 
the  writ  of  habeas  corpus  to  all  cases  which  it  would  reach  at  com 
mon  law ;  provided  it  be  not  issued  to  any  person  in  jail,  unless 
confined  under  and  by  color  of  the  authority  of  the  United  States. 
Exparte  Des  Rochers,  1  McAllister,  68.     A  State  court,  on  a  writ 
of  habeas  corpus  issued  at  the  relation  of  one  committed  on  process 
from  a  federal  court,  cannot  go  behind  the  commitment  and  inquire 
into  the  grounds  of  it.     Williamson  v.  Lewis,  18  Leg.  Int.   172. 
What  de-      The  privilege  of  the  writ  of  habeas  corpus  can  only  be  suspended 
nartmentof  by  act  of  Congress.     Ex  part e  Merryman,  24  Law  Rep.  78;  9  Am. 
mcnUHiTy'  L-  R-  5245  Jones  v-  Seward,  3  Gr.  431.   But  see  McQuillan's  Case, 
can  suspend  9  Pittsburgh  Leg.  I.  27  ;   27  Law  Rep.   129  ;  and  Bates  on  Hob  MS 
the  writ?       Corpus.     The  federal  judges  have  exclusive  jurisdiction  on  habeas 
corpus,  whenever  the  applicant  is  illegally  restrained  of  his  liberty, 
under  or  by  color  of  the  authority  of  the  United  States,  whether 
by  virtue  of  a  formal  commitment  or  otherwise. 

What  is  the  Ex  parte  McDonald,  9  Am.  L.  R.  662.  Much  diversity  of  opinion 
K0.W!rc°f  the  aPPears  to  exist»  as  fco  tlie  power  of  the  State  courts  to  discharge, 
ovei-VerCons  on  ^iaoeas  corpus,  a  person  illegally  held  in  the  military  service  of 
held  in  mil-  the  United  States.  Some  judges  hold  that  the  State  courts  have 
itary  serv-  jurisdiction  to  discharge  one  enlisted  contrary  to  the  acts  of  Con 
gress.  Wilson's  case,  18  Leg.  Int.  316;  Dobb's  Case,  9  Am.  L. 
R.  565;  Commonwealth  v.  Carter,  20  Leg.  Int.  21;  Henderson's 
Case,  Id.  181 ;  Webb's  Case,  10  Pittsburgh  Leg.  I.  106 ;  contra, 
Phelan's  Case,  9  Abbott,  286.  And  in  Carney's  Case,  Chief-Justice 
Lowrie  discharged  a  person  from  military  arrest,  who,  after 
having  been  exempted  from  the  conscription  by  the  board  of 
enrolment,  was  arrested  on  the  pretext  that  they  had  recon 
sidered  their  decision.  14th  August,  1863,  MS.  On  the  con 
trary,  it  has  been  held  that  the  State  courts  have  no  jurisdic 
tion  to  inquire  into  the  validity  of  the  draft  on  habeas  corpus. 
Spangler's  Case,  11  Am.  L.  R.  596:  Jordan's  Case,  Id.  749.  And 
that  they  have  no  power  to  discharge  from  the  custody  of  the  provost 
marshal  one  held  for  desertion,  though  enlisted  contrary  to  law. 
Shirk's  Case,  3  Gr.  460.  This,  however,  was  said  by  Leonard,  J.,  in 
the  Supreme  Court  of  Xew  York,  to  be  founded  on  a  misconception 
of  the  case  of  Ableman  v.  Booth ;  and  Barrett,  having  been  illegally 
enlisted,  was  discharged,  notwithstanding  a  charge  of  desertion. 
Barrett's  Case,  12  Pittsburgh  Leg.  1.  90.  See  also  Follis's  Case, 
19  Leg.  Int.  276;  United  States  v.  Wright,  20  Id.  21;  McCall's 
Case,  Id.  108;  Commonwealth  v.  Rogers,  10  Pittsburgh  Leg.  I. 
178;  Stevens's  Case,  24  Law  Rep.  205  ;  Ex  parte  McDonald,  9  Am. 
L.  R.  662;  United  States  v.  Taylor,  20  Leg.  Int.  284;  In  re  Hicks 
and  Archibald,  1 1  Pittsburgh  Leg.  I.  25 ;  Com.  v.  Wright,  3  Gr.  437. 
In  Vallandigham's  Case,  Judge  Leavitt  refused  an  applica 
tion  for  a  writ  of  habeas  corpus,  on  the  ground  that  the  imprison- 


01.  2.]  HABEAS   COPvPUS,    141.  143 

ment  was  under  military  authority,  and  that,  although  a  civilian,  he  An>l  when 
was  held  for  trial  before  a  military  commission,  for  disloyal  prac-  b*'.1(.1  ^y  lhe 
tices;  the  country  being  engaged  in  war,  and  the  military  necessi- 
ties  requiring  that  the  power  to  arrest  parties  under  such  circum 
stances  should  be  exercised  by  the  President,  as  commander-in- 
chief.  Vallandigham's  Trial,  259.  Where  a  prisoner  is  held  on 
original  federal  (not  judicial)  process,  the  State  courts  have  concur 
rent  jurisdiction  with  those  of  the  United  States,  to  inquire  into 
the  legality  of  the  detention  on  habeas  co-pus.  Bressler's  Case,  3 
G-r.  447;  citing  10  Johns.  328;  7  Cow.  471;  5  Hill,  16:  2  South, 
555;  12  N.  11.  194;  11  Mass.  63  ;  24  Pick.  267;  7  Gush.  285;  7 
Barr.  336.  The  State  judges  have  no  power,  on  habeas  corpus, 
to  inquire  into  cases  of  commitment  or  detainer,  under  the 
authority  of  the  federal  government.  Hopson's  Case,  12  Am.  L. 
R.  189.  A  return  to  a  habeas  corpus,  by  a  provost  marshal,  that  the 
prisoner  is  held  as  a  deserter  from  the  army,  under  the  authority 
of  the  United  States,  is  sufficient,  without  the  production  of  the 
body ;  the  State  courts  having  no  jurisdiction  to  inquire  into  the 
truth  of  the  fact  alleged  in  the  return.  Id.  The  proceedings  on  a 
writ  of  habeas  corpus  in  the  federal  courts,  are  governed  by  the 
common  la\v  of  England  as  it  stood  at  the  adoption  of  the  Consti 
tution,  subject  to  such  alterations  as  Congress  may  prescribe.  Ex 
parte  Kaine,  3  Blatch.  1.  See  Ex  parte  Aernam,  Id.  160. 

By  the  act  of  3d  March,  1863,  §  1,  12  Stat.  755  (2  Brightly,  196),  Give  the 
it  is  declared  : — ''During  the  present  rebellion,  the  President  of  jjj*,^'^ 
the  United  States,  whenever,  in  his  judgment,  the  public  safety  may  t^act'to'' 
require  it,  is  authorized  to  suspend  th.3  writ  of  h'ibeas  corpus  in  any  suspend  the 
case  throughout  the  United  States,  or  any  part  thereof."  writ  ? 

Upon  a  return  to  a  writ  of  habeas  corpus,  that  the  relator  was 
held  by  virtue  of  an  order  issued  by  the  Secretary  of  War,  by 
direction  of  the  President,  for  endeavoring  to  prevent,  and  dis 
couraging  enlistments  in  the  army,  and  that  the  privilege  of  the 
writ  of  habeas  corpus  had  been  suspended  by  the  President,  the 
writ  was  dismissed  without  inquiry  into  the  validity  of  the  arrest, 
or  the  legality  of  the  cause  of  complaint.  Kulp  v.  Ricketts,  3  Or. 
420.  And  see  Vallandigham's  Trial,  259. 

On  the  15th  September,  1863,  the  President,  by  proclamation,  And  the 
suspended  the  privilege  of  the  writ  of  habeas  corpus,  during  President's 
the  rebellion,  throughout  the  United  States,  in  all  "cases  when,  jjjjj'f 
by  the  authority  of  the  President  of  the  United  States,  the  mili 
tary,  naval,  and  civil  officers  of  the  United  States,  or  any  of  them, 
hold  persons  under  their  command  or  in  their  custody, 
either  as  prisoners  of  war,  spies,  or  aiders  or  abettors  of  the 
enemy,  or  officers,  soldiers,  or  seamen,  enrolled,  drafted,  or 
mustered  or  enlisted  in  or  belonging  to  the  land  or  naval  forces 
of  tlie  United  States,  or  as  deserters  therefrom,  or  otherwise 
amenable  to  military  law,  or  the  rules  and  articles  of  war,  or 
the  rules  or  regulations  prescribed  for  the  military  or  naval 
service  by  authority  of  the  President  of  the  United  States,  or  for 
resisting  a  draft,  or  for  any  other  offense  against  the  military  or 
nuval  service."  In  Commonwealth  ex.  rei.  Cozzens  v.  Frink,  on 
habeas  corpus,  before  Judge  Thompson  of  the  Supreme  Court  of 


144  HABEAS   COKPUS,    141.  [Art.  L,  See  9, 

Pennsylvania,  it  was  decided,  that  the  courts  will  take  judicial 
notice  that  the  rebellion  no  longer  continues,  and  with  it  ends  the 
power  of  the  President  to  suspend  the  habeas  corpus,  and  to  order 
the  arrest  of  a  citizen,  without  warrant,  if  any  he  ever  possessed, 
by  virtue  of  this  act.  In  that  case,  a  provost-marshal  made 
return  to  a  writ  of  habeas  corpus,  that  the  relator  was  detained  by 
him  as  a  prisoner,  under  the  authority  of  the  President  of  the 
United  States;  this  return,  however,  was  adjudged  insufficient. 
and  the  prisoner  w4s  discharged  from  military  arrest.  Phla- 
delphia  "Ledger,"  6th  July,  18G5.  13  Am.  L.  R.  700. 
Mrs.  Sur-  In  Mrs.  Surratt's  Case,  Judge  Wylie,  of  the  Supreme  Court  of 
ratt\scase?  the  District  of  Columbia,  issued  a  writ  of  habeas  corpus  to  inquire 
into  the  legality  of  her  conviction  by  a  military  commission  ;  but 
was  compelled  to  acknowledge  himself  powerless  to  enforce 
obedience  to  the  writ,  and  the  prisoner  was  executed  in  pur 
suance  of  the  sentence.  7th  July,  1865. 

See  2  Brightly's  Dig.  title  Habeas  Corpus,  140,  141.  Mr.  Bright 
ly  also  refers  to  the  pamphlet  of  Horace  Binney,  against  the  con 
stitutionality  of  the  act. 

But  see  Attorney-General  Bates  on  Habeas  Corpus,  5th  July, 
1861. 

What  is  the  The  circuit  court  may  certify  a  proceeding  for  a  habeas  corpus, 
jurisdiction  upon  a  division  of  opinion,  as  in  other  ''causes"  or  "suits." 
m'eme611  (Bollman's  Case,  4  Cranch,  75;  case  of  Tobias  Watkins,  3  Pet. 
Court  of  the  193  ;  The  United  States  v.  Dauiel,  6  Wheat.  562  ;  Weston  v.  The 
United  City  Council  of  Charleston,  2  Pet.  449  ;  Cohens  v.  Virginia,  6 
Wheat.  264;  Holmes  v.  Jeunison,  14  Pet.  540.)  Ex  parte  Milligan, 
199-201.  4  Wallace,  110-113,  117. 

If  a  party  is  unlawfully  imprisoned,  the  writ  of  habeas  corpus  is 
his  appropriate  legal  remedy.  It  is  his  suit  in  a  court  to  recover 
his  liberty.  (Holmes  r.  Jennison,  4  Pet.  540.)  Ex  parte  Milligau, 
4  Wallace,  113,  132. 

The  act  of  Congress  "relating  to  habeas  corpus  and  regulating 
proceedings  in  certain  cases,"  was  approved  March  3d,  1863.  (12 
St.  755.)  Ex  parte  Milligan,  4  Wallace,  114.  This  act  was  consti 
tutional.  .Id.  133. 

The  President  suspended  the  writ  by  proclamation,  dated  15th 
September,  1863.  Id. 

Does  the  The  suspension  of  the  writ  does  not  authorize  the  arrest  of  any 

suspension  person,  but  simply  denies  to  one  arrested  the  privilege  of  this  writ 
in  or(ier  to  obtain  his  liberty.  Exparte  Milligan,  4  Wallace,  115. 
The  act  recited.  Id.  The  Chief- Justice  and  Justices  Wayne, 
Swayne  and  Miller  dissented  from  this.  Id.  137. 

The  suspension  of  the  privilege  of  the  writ  of  habeas  corpus  does 

not  suspend  the  writ  itself.     It  issues  as  a  matter  of  course,  and  on 

the  return  made  to  it,  the  court  decides  whether  the  party  applying 

is  denied. the  right  of  proceeding  any  further  with  it.     Id.  131. 

When  will  it      The  supreme  court  will  not  grant  the  writ  to  bring  up  a  party 

live  in  con-  ^  imprisoned  for  contempt,  except  on  a   certilicate  of  division  of 

tempt  cuoes .  OpjnjOUj  because  such  a  commitment  is  a  criminal  proceeding.     Ex 

parte  Kearney,   7  Wheat.  38;  Anderson  v.  Dunn,  6  Wheat.  204; 

Sergeant's  Constitutional  Law,  66,  67;   James  Buchanan,  Peck's 

Trial,  435. 


Cl.  2.]  HABEAS   CORPUS,    141.  145 

The  laws  of  Pennsylvania  in  relation  to  the  writ  of  Habeas  When  for 
Corpus  reviewed.      Opinion  of  Attorney-Genera],  Henry  Staubery  persons  en- 
in  Gormley's  case,  6th  Oct.,  1867.     And  also  life  several  acts  of 


Congress  of  1789,  1833,  1842,  and  1863,  upon  the  subject  of  Habeas 
Corpus.  None  of  these  acts  declare  the  jurisdiction  of  the  courts 
of  the  United  States  to  be  exclusive  of  the  State  courts.  Id. 

From  an  examination  of  the  acts  of  1789,  1806,  1809,  1820, 
1837,  1845,  and  July  1,  1864,  it  appears  that  minors  between 
the  ages  of  thirteen  and  eighteen  may  be  enlisted  in  the 
navy  with  the  consent  of  their  parents  or  guardians,  to  serve 
until  the  age  of  twenty-one  years  ;  and  that  minors  above  eighteen 
years  may  be  enlisted  without  such  consent.  Id. 

The  weight  of  authority  is  in  favor  of  the  power  of  the  State 
courts  to  hear  the  application  of  enlisted  persons  or  persons  held  by 
United  States  authority,  and  to  discharge  or  remand  them.  Id. 
The  production  of  the  body  is  the  life  of  the  writ.  Id. 

But  judicial  convictions  and  sentences  by  the  United  States 
courts  are  exceptions  to  the  rule. 

IS'  either  the  regularity  nor  validity  of  the  proceedings  can  be 
called  in  question  by  any  other  court,  State  or  Federal,  by  habeas 
corpus.  (Able  man  v.  Booth,  21  How.  506,  526.)  Stanbery's  opin 
ion  in  Gorm'.ey's  Case. 

"  We  do  not  question  the  authority  of  a  State  court  or  judge,  who  Define  the 
is  authorized  by  the  laws  of  the  State  to  issue  the  writ  of  habeas  demarcation 
corpus,  to  issue  it  in  any  case  where  the  party  is  imprisoned  within  poSersofthe 
its  territorial  limits,  provided  it  does  not  appear  when  the  applica-  United 
tion  is  made,  that  the  person  imprisoned  is  in  custody  under  States  and 
authority  of  the  United  States.  The  court  or  judge  has  a  right  to  c 
inquire  into  this  mode  of  proceeding  for  what  cause  and  by  what 
authority  the  prisoner  is  confined  within  the  territorial  limits  of  the 
State  sovereignty.  And  it  is  the  duty  of  the  marshal  or  other  per 
son  having  the  custody  of  the  prisoner,  to  make  known  to  the 
judge  or  court,  by  a  proper  return,  the  authority  by  which  he 
holds  him  in  custody.  This  right  to  inquire,  by  means  of  habeas 
corpus,  and  the  duty  of  the  officer  to  make  a  return,  grows  neces 
sarily  out  of  the  complex  character  of  our  government,  and  the 
existence  of  two  distinct  and  separate  sovereignties  within  the 
same  territorial  space,  each  of  them  restricted  in  its  power,  and 
each,  within  its  own  sphere  of  action,  prescribed  by  the  Constitu 
tion  of  the  United  States,  independent  of  the  other.  But  after  the 
return  is  made,  and  the  State  judge  or  court  judicially  apprised 
that  the  party  is  in  custody  under  the  authority  of  the  United 
States,  they  can  proceed  no  further.  They  then  know  that  the 
prisoner  is  within  the  dominion  and  under  the  jurisdiction  of 
another  government,  and  that  neither  the  writ  of  habeas  corpus  or 
any  other  process  issued  under  State  authority  can  pass  over  the 
line  of  division  between  the  two  sovereignties.  He  is  then  within 
the  dominion  and  exclusive  jurisdiction  of  the  United  States.  If 
he  has  committed  an  offense  against  their  laws,  they  alone  can 
punish  him.  If  he  is  wrongfully  imprisoned,  their  tribunals  can 
release  him  and  afford  him  redress.  And  although,  as  we  have  said, 
it  is  the  duty  of  the  marshal,  or  other  person  holding  him,  to  make 
known  by  a  proper  return  the  authority  under  which  he  detains 
7 


146          HABEAS   COEPUS,    ATTAINDER,    142.     Art.  I.,  Sec.  9, 

him,  it  is  at  the  same  time  imperatively  his  duty  to  obey  the  pro 
cess  of  the  United  States,  to  hold  the  person  in  custody  under  it, 
and  to  refuse  obedience  to  the  marshal  or  process  of  any  other  govern 
ment.  And,  consequently,  it  is  his  duty  not  to  take  the  prisoner, 
or  suffer  him  to  be  taken,  before  a  State  judge,  or  court,  upon  a 
habeas  corpus  under  State  authority.  No  State  judge  or  court, 
after  they  are  judicially  informed  that  the  party  is  imprisoned 
under  the  authority  of  the  United  States,  has  any  authority  to 
interfere  with  him  or  to  require  him  to  be  brought  before  them. 
And  if  the  authority  of  a  State,  under  form  of  judicial  process 
or  otherwise,  should  attempt  to  control  the  marshal  or  other 
authorized  officer  or  agent  of  the  United  States  in  any  respect,  in 
the  custody  of  his  prisoner,  it  would  be  his  duty  to  resist  it  and 
call  to  his  aid  any  force  that  might  be  necessary  to  maintain  the 
authority  of  the  law  against  illegal  interference.  No  judicial  pro 
cess,  whatever  form  it  may  assume,  can  have  any  authority  out 
side  of  the  limits  of  the  jurisdiction  of  the  court  or  judge  by  whom 
it  is  issued  ;  and  an  attempt  to  enforce  it  beyond  these  boundaries 
is  nothing  less  than  lawless  violation.  (United  States  v.  Booth,  21 
How.  526?")  Stanbery  in  Gormley's  Case  ;  1  Kent's  Com.  32,  llth 
Edition,  note  1. 

This  general  language  is  to  be  confined  to  process  issued  by  the 
United  States  courts,  not  to  any  other  kind  of  imprisonment,  (tiurd 
on  Habeas  Corpus,  284.)  Stanbery. 

It  was  the  duty  of  Commodore  Selfridge  to  produce  the  body  of 
the  marine.  Id.  The  decision  of  the  Secretary  of  the  Navy  was 
revoked,  and  the  Commodore  ordered  to  obey  the  writ  of  the  Court 
of  Quarter  Sessions  of  Pennsylvania.  New  York  Herald  of  7th 
Oct.,  1867. 

Attainder         [3.]  No  bill  of  attainder  or  ex  post  facto  law  shall 

and  ex  post    •,  -. 

facto  T         be  passed. 

Define  Bill  142.  A  BILL  OP  ATTAINDER  is  a  legislative  act  which  inflicts 
of  Attain-  punishment  without  a  legal  trial  And  it  includes  bills  of  pains 
and  penalties.  (Story's  Const.  §  1344.)  Cummings  v.  The  State 
of  Missouri,  4  Wallace,  323.  They  may  be  directed  against  indi 
viduals  or  a  whole  class.  Id.  And  inflict  punishment  absolutely 
or  conditionally.  Id.  Gaines  v.  Buford,  1  Dana,  510. 

Give  exam-       The  Constitution  of  Missouri,  which  required   an  expurgatory 
pie  of  such?  oath  of  all  priests,  teachers,  &c.,  was  in  effect,  a  bill  of  attainder. 
19.         Cummings  v.  State  of  Missouri,  4  Wall  323,  325. 

The  test  oath  required  of  Attorneys  (note  242)  of  the  courts  of 
the  United  States,  partakes  of  the  nature  of  a  bill  of  pains  and 
penalties,  and  it  is  subject  to  the  constitutional  inhibition  against 
the  passage  of  bills  of  attainder,  under  which  general  designation 
they  are  included.  Ex  parte  Garland,  4  Wallace,  377  ;  II.  Stan 
bery 's  Opinion  of  24th  May,  1867,  p.  14. 

In  Cummings  v.  The  State,  (4  Wallace,  326),  we  considered  the 
meaning  of  a  bill  of  attainder  and  of  an  ex  post  facto  law  in  the 
Clause  of  the  Constitution  forbidding  their  passage  by  the  States, 
and  it  is  unnecessary  to  repeat  here  what  we  there  said.  A  like 


01.  3.]  ATTAINDER— EX  POST  FACTO,  142,  143.       147 

prohibition  is  contained  in  the  Constitution  against  enactments  of 
this  kind  by  Congress.     Ex  parte  Garland,  4  Wallace,  378. 

Attorneys  and  counsellors  are  not  officers  of  the  United  States.  Are  attor- 
Id.     They  are  officers  of  the  court,  and  hold  during  good  behavior.  neys  offl" 
and  can  only  be  deprived  of  their  offices  for  misconduct  ascertained  cers? 
and  declared  by  the  judgment  of  the  court,  after  opportunity  to  be 
heard  has  been  afforded.    (Ex  parte  Heyfron,  7  Howard,  Mississippi, 
127  ;  Fletcher  v.  Dangerfield,  20  California,  430.)    Id. 

Their  appointments  and  removal  are  judicial  acts,  and  they  can 
only  be  deprived  of  the  right  for  moral  and  professional  delinquency. 
(In  the  matter  of  the  application  of  Henry  W.  Cooper,  22  New 
York  (8  Smith),  81;  Ex  parte  Secombe,  19  How.  9.)  Ex  parte 
Garland,  4  Wallace,  379.  The  removal  cannot  be  effected  by  an 
act  of  Congress  requiring  new  qualifications.  (Cummings  v.  Mis 
souri,  4  Wallace,  329.)  Ex  parte  Garland,  4  Wallace,  380.  Such 
laws  are  forbidden  both  to  Congress  and  the  States.  Id.  386. 

In  the  opinion  by  Mr.  Justice   Miller,  expressing  the  dissent  of  What  was 
Chief-Justice   Chase,    Justices   Davis,    Swayne,    and    himself,   he  the  dissent? 
defines  "  ATTAINDER,"  in  the  language  of  Sir  Thomas  Tomlins,  as 
"the   stain  or   corruption  of  blood  of  a   criminal   capitally  con 
demned  ;   the  immediate  and  inseparable  consequence  of  the  com 
mon  law,  on  the  pronouncing  the  sentence  of  death."     Ex  parte 
Garland,  4  Wallace,  387. 

Bills  or  acts  of  attainder  were  laws  which  declared  certain  persons 
attainted,  and  their  blood  corrupted,  so  that  it  had  lost  all  heritable 
quality.  Ex  parte  Garland,  4  Wall.  387. 

The  power  to  pass  attainders  is  forbidden  in  this  section  to  Con-  Is  the  power 
gress,  in  section  nine  to  the  States,  and  in  section  three  of  artfcle  forbidden  to 
III.,  it  is  declared  that  no  attainder  of  treason  shall  work  corrup- 
tion  of  blood  or  forfeiture,  except  during  the  life  of  the  person        159. 
attainted.     Ex  parte  Garland,  4  Wallace,  387,  388. 

Attainders  were  convictions  and  sentences  pronounced  by  the  Define  at- 
legislative  department,  instead  of  the  judicial ;  the  sentence  pro-  tenders  at 
nounced  and  the  punishment  inflicted  were  determined  by 
previous  law  or  fixed  rule;  the  investigation  into  the  guilt  of  the 
accused,  if  any  were  made,  was  not  necessarily  or  generally  con 
ducted  in  his  presence,  or  that  of  the  counsel,  and  no  recognized 
rule  of  evidence  governed  the  inquiry.  (Story's  Const.  §  1344.) 
Ex  parte  Garland,  4  Wallace,  389.  (A  bill  of  attainder  may  affect 
the  life  of  an  individual,  or  may  confiscate  his  property,  or  both. 
Fletcher  v.  reck,  6  Cr.  138 ;  1  Kent's  Com.  Lect.  19,  p.  382.) 

The  act  of  Congress  and  the  Constitution  of  Missouri,  requiring  13. 
expurgatory  oaths,  do  not  come  within  the  definitions,  and  are  143. 
not  bills  of  attainder.  Ex  parte  Garland,  4  Wallace,  388. 

They  designate  no  criminal,  either  by  name  or  description,  de 
clare  no  guilt,  pronounce  no  sentence  and  inflict  no  punishment, 
and  can,  in  no  sense,  be  bills  of  attainder.  Justice  Miller  in  ex 
parte  Garland,  4  "Wallace,  390.  See  2  Woodeson's  Lectures,  622- 
t>24. 

143.  Ex  post  facto  laws  are  such  as  create  or  aggravate  crime,  Define  ex 
or  increase  the  punishment,  or  change  the  rules  of  evidence  for  theP°8t  fo^tof 
purpose  of  conviction.     Calder  v.  Bull,  3  Dall.  390 ;  Cummings  v. 


148  EX  POST  FACTO  LAW,    143.        [Art.  L,  Sec.  9. 

Missouri,  4  Wallace,  326;  Shepherd  v.  People,  25  N.  T.  406.  The 
phrase  only  applies  to  penal  and  criminal  laws,  which  inflict  for- 
156.  t'eitures  or  punishment,  and  not  to  civil  proceedings  which  affect 
private  rights  retrospectively.  Watson  v.  Mercer,  8  Pet.  110; 
Carpenter  v.  Pennsylvania,  17  How.  463  ;  Fletcher  v.  Peck,  6  Cr. 
138 ;  Society  for  the  Propagation  of  the  Gospel  v.  Wheeler,  2  Gall. 
138;  United  States  v.  Hall,  2  Wash.  C.  C.  366;  Commonwealth  v. 
Lewis,  6  Binn.  271 ;  Locke  v.  New  Orleans,  4  Wallace,  173.  There 
is  nothing  in  the  Constitution  which  forbids  Congress  to  pass  laws 
violating  the  obligation  of  contracts,  though  such  a  power  is  denied 
to  the  States.  Evans  v.  Eaton,  Pet.  C.  C.  323  ;  Mayer  v.  Knight, 
27  Tex.  719;  Paschal's  Annotated  Digest,  note  220,  p.  91,  and  note 
157,  p.  42. 

An  ex  post  facto  law  renders  an  act  punishable  in  a  manner  it  was 

not  punishable  when  committed.    (Fletcher  v.  Peck,  6  Cranch,  138.) 

Give  an         Cummings  v.  Missouri,  4  Wallace,  326.     An  act  repealing  a  law  on 

example?      wnjcn  a  grant  rests  and  annulling  the  title,  is,  in  effect,  an  ex  post 

18.        facto  law.     Idem.     The  Constitution  of  Missouri,  which  disqualified 

122.        all  persons  who  had  aided  in  the  rebellion  or  sympathized  with 

the  rebels,  unless  they  took  an  expurgatory  oath,  was  in  effect  an 

ex  post  facto  law.     Cummings  v.  Missouri,  4  Wallace,  327. 

Some  of  the  things  enumerated  in  the  oath  were  not  offenses 
when  committed;  and  therefore  are  within  the  definition  of  an  ex 
post  facto  law.  "They  impose  a  punishment  for  an  act  not  pun 
ishable  at  the  time  it  was  committed."  Id.  So  the  clauses 
which  imposed  a  further  penalty  was  ex  post  facto,  because  "they 
impose  additional  punishment  to  that  prescribed  when  the  act  was 
committed."  (Fletcher  v.  Peck,  6  Cranch,  138.)  Cummings  v. 
Missouri,  4  Wallace,  328.  (For  the  Missouri  oath,  see  Constitution 
of  Missouri,  Article  II.,  1  New  York  Convention  Manual,  p.  348.) 

This  provision  to  secure  the  liberty  of  the  citizen,  cannot  be 
*       evaded  by  the  form  in  which  the  power  of  the  State  is  exerted.  Id. 
To  what  In  the  cases  of  Cummings  and  Garland,  Mr.  Justice  Miller  de- 

class  of  cases  livered  the  dissentient  opinion  for  Chief- Justice  Chase,  Justices 
facfo^ify     Davis,  Swayne,  and  himself.     He  held  that  all  the  cases  agree,  that 
apply?          the  term  ex  post  facto  is  to  be  applied  to  criminal  and  penal  cases 
alone,  and  not  to  civil  proceedings.     (Watson  v.  Mercer,  8  Pet.  88  ; 
159.        Calder  v.  Bull,  3  Dall.  386  ;  Fletcher  v.  Peck,  6  Cr.  87 ;    Ogden  v. 
Saunders,  12  Wheat.  266;    Satterlee  v.  Matthewson,  2  Pet.   380.) 
Exparte  Garland,  4  Wallace,  390,  391. 

233.  They  make  acts  done  before  the  passage  of  the  law,  and  which 

were  innocent  when  done,  criminal,  and  punish  such  actions;  or 
change  the  punishment  and  inflict  greater  punishment  than  the 
law  annexes  to  the  crime  when  committed ;  or  they  alter  the  rules 
of  evidence  and  receive  less  or  different  testimony  than  the  law 
required  at  the  time  of  the  commission  of  the  offense.  (Caldcr  v. 
Bull,  3  Dall.  386.)  Ex  parte  Garland,  4  Wall.  391  ;  Cummings  v. 
Missouri,  4  Wall.  325,  326;  Shepherd  v.  People,  25  N.  Y.  (11 
Smith)  406. 

158.  The  true  distinction,  is  between  ex  post  facto  laws  and  retrospec 

tive  laws.     (Calder  v.  Bull.)     Exparte  Garland,  4  Wallace,  391. 
The  minority  held  that  the  test  oath  to  attorneys  in  the  act  of 


Cl.  4.]  CAPITATION  —  DIKECT  TAX,  143,  144.  149 

Congress,  and  the  expurgatory  oath  in  the  Constitution  of  Missouri 
are  not  within  the  definition  of  an  ex  post  facto  law.     Id. 

And  for  further  learning:  on  the  subject,  see  Carpenter  v.  Penn 
sylvania,  17  How.  456;  Baugher  v.  Nelson,  9  Gill.  299;  The 
Federalist,  Nos.  44,  49  ;  Journal  of  Convention,  Supp.  431  ;  2  Am. 
Museum,  556;  2  Elliot's  Debates,  343-354;  Ogden  v.  Saunders, 
12  Wheat.  266,  303,  329,  330,  335;  1  Kent's  Com.  Lect.  19,  pp. 
381,  382. 

[4.]  No  capitation,  or  other  direct  tax,  shall  be  laid,  what  is  the 

-I          .  ,  .  ,  ,  Inhibition  as 

unless  in  proportion  to  the  census  or  enumeration  here-  to  direct 
inbefore  directed  to  be  taken. 

144.  "  CAPITATION,"  [Lat.  caput,  the  head]  or,  as  they  are  more  Define  capi- 
commonly  called,  poll-taxes,  that  is  taxes  upon  the  polls,  heads,  or  tation  ? 
persons,  of  the  contributors,  are  direct  taxes.     (See  Smith's  "Wealth 
of  Nations,  B.  5,  ch.  2,  art.  4;  The  Federalist,  No.  36;   2  Elliot's 
Debates,  209.)  Story's  Const.  §  954;  Hylton  v.  United  States  3 
Dall.  171;  Loughborough  v.  Blake,  5   Wh.  320-1.      This   section, 
compared  with  the  8th  and  9th,  and  the   2d  section  of  the  1st  22,  81,  85. 
art.     Hylton  v.  United  States,  1    Cond.  84.     A  tax  on.  carriages, 
expenses,  or  income  is  not  a  direct  tax.     Id. 

Taxes  on  lands,  houses,  &c.,  are  direct  taxes.  (1  Tucker's  Black. 
Com.  App.  232,  233;  Hylton  v.  United  States,  3  Dall,  171;  The 
Federalist,  No.  21  ;  Loughborough  v.  Blake,  5  Wheat.  317-325.) 
Story's  Const.  §  954.  The  poll-tax  was  to  be  considered  direct  on 
account  of  the  slaves.  Id. 

In  a  general  sense,  all  contributions  imposed  by  the  government  What  are  all 
upon  individuals  for  the  service  of  the  State,  are  called  taxes,  by  contribu- 
whatever  name   they  may  be  known,  whether  by  the  name  of  p'^Vby" 
tribute,  tithe,  tailage,  impost,  duty,  gabel,   custom,  subsidy,  aid,  government 
supply,  excise,  or  other  name.     They  are  divided  into  direct  and  called? 
indirect  taxes.     Under  the  former  are  included  taxes  on  land,  or  72  77 
other  real  property;  under  the  latter,  taxes  on  articles  of  con 
sumption.      (Federalist,  Nos.  21,  36;  Smith's  Wealth  of  Nations; 
B.  5,  ch.  2,  Pt.  2,  Arts.  1  and  2  and  App.  ;  Loughborough  v.  Blake,  5 
Wheat.  317-319.)  Story's  Const.  §  950. 

If  South  Carolina  considers  the  revenue  laws  unconstitutional,  What  -was 
and  has  a  right  to  prevent  their  execution  in  the  port  of  Charles-  ,of« 


ton,  there  would  be  a  clear  constitutional  objection  to  their  collec- 
tion  in  every  port,  and  no  revenue  could  be  collected  anywhere  ; 
for  all  imposts  must  be  equal.  President  Jackson's  Proclamation, 
10th  December,  1832  ;  Story's  Const.  §  1053a,  note  1.  It  will  also 
be  found  in  Bentou's  Thirty  Years  in  the  Senate.  No  document 
has  ever  more  strongly  stated  the  principles  upon  which  the  gov 
ernment  suppressed  the  rebellion. 

For  an  exhaustive  treatise  on  "  TAXES,"  see  Story's  Const.  3  ed. 
book  3,  ch.  IV. 

Direct  taxes  must  be  by  the  rule  of  apportionment.  The  License  22,  81. 
Cases,  5  Wall.  471. 


150 


CENSUS— TAXES,    145,  146.       [Art.  I.,  Sec.  9. 


Define 
census  ? 


21, 


24. 

275,  285. 


How  many 
census  re 
ports? 


145.  "  CENSUS." — Lat.  in  the  Roman  law.  A  numbering  or 
enrollment  of  the  people,  with  a  valuation  of  their  fortunes  (per- 
sonarum  et  bonorum  de*criptio).  (Brissonius.)  The  right  of  being 
enrolled  in  the  census  books.  (Butler's  Corpus  Jur.  27.)  [Law 
Lat]  In  old  European  law,  a  tax  or  tribute  (tributum);  a  toil 
(Esprit  des  lois,  liv.  30,  c.  14).  Burrill's  Law  Die.,  CENSUS. 

In  this  clause  it  doubtless  has  reference  to  Article  1,  clause  3, 
which  declares  that  "  Representatives  and  direct  taxes  shall  be  ap 
portioned  among  the  several  States  which  may  be  included  in  the 
Union  according  to  their  respective  numbers,"  the  basis  of  which, 
as  has  been  seen,  was  to  number  every  soul,  but  to  exclude  two- 
fifths  of  the  slaves  from  the  ratio  of  representation.  But  since 
the  destruction  of  slavery,  all  the  "numbers"  found  i:y  the  future 
censuses  must  be  counted,  unless  the  new  basis  proposed  by  the 
fourteenth  amendment  shall  have  been  adopted.  This  has  natur 
ally  been  one  of  the  great  points  of  controversy  upon  the  recon 
struction  question.  It  is  a  legitimate  fruit  of  the  revolution. 

To  the  philosophical  statesman  there  has  been  nothing  in  the 
execution  of  the  Constitution  so  valuable  as  the  Census  Reports  and 
the  Compendiums  thereof,  running  through  eight  decades.  The 
information  and  the  classification  have  improved  eveiy  year,  until 
the  present  able  head  of  the  bureau  has  almost  reduced  the  tables 
to  perfection.  Nothing  is  hazarded  in  saying  that,  had  these  reports 
been  carefully  studied,  the  Union  never  would  have  encountered 
its  severe  struggle. 

[5.]  Xo  tax  or  duty  shall  be  laid  on  articles  exported 
from  any  State.  [6.]  No  preference  shall  be  given  by 
any  regulation  of  commerce  or  revenue  to  the  ports  of 
one  State  over  those  of  another ;  nor  shall  vessels 
bound  to,  or  from,  one  State,  be  obliged  to  enter, 
clear,  or  pay  duties  in  another. 

Can  there  be      146.  "  No  TAX  OR  DUTY." — The  power  is  thus  wholly  taken 

any  duty  on  away  to  interfere  with  the  subject  of  exports.     Story's   Const.  § 

exports}        1014;  Sergeant's  Const,  ch.  28,  p.  346;   Rawle's  Const,  ch.  10,  p. 

115,  116;  United  States  v.  Brig  William,   2  Hall's  Law  Jour.  255, 

259,   2 GO.     The  subject  was  well  considered  in  the  Convention. 

Journals  of  Convention,  222,  275,  301,  318,  377;  2  Curtis's   Hist. 

Const.  290,  304. 

The  clause  was  stricken  out  of  the  Constitution  of  the  Confed 
erate  States.  This  clause  read:  ''No  preference  shall  be  given 
by  any  regulation  of  commerce  to  the  ports  of  one  State  over  those 
of  another." 

And  very  heavy  export  duties  were  levied  upon  cotton,  first  by 
military  orders,  and  afterward  by  statute.  Paschal's  Annotated 
Digest,  p.  90,  §  7. 

The  omission  in  regard  to  vessels  was  to  correspond  with  their 
amendment  in  regard  to  commerce. 

*  147.  "No  PREFERENCE."— [Lat.  prefero,  the  act  of  preferring.] 


"What  are  the 
inhibitions 
as  to  com 
merce  ? 

144 
61. 


Cl.  5,  6.]  PREFERENCE— MONET,  147-149.  151 

— This  means,  that  "  all  duties,  imports  and  excises,  shall  be  uniform  "What  means 
throughout  the  United  States."     See  Story's  Const.  §  1016-1031,  preference? 
3d  edition  and  notes;  Journals  of  the  Convention,  227,  303,  304;         81- 
Federalist,  No.  44. 

An  "  IMPOST,"  or  duty  on  imports,  is  a  custom  or  tax  levied  on  Define  iin- 
articies   brought  into   a  country.      "IMPORTS,"    are  the  articles  l)ost? 
themselves  which  are  brought  into  the  country.     "  A  DUTY  ON  Import! 
IMPORTS  "  is  not  merely  a  duty  on  the  act  of  importation,  but  it  is  75~7^ 
a  duty  on  the  thing  imported.     (Brown  v.  Maryland,  12  Wheat. 
449.)     Story's  Const.  §  1013-1031,  1072a-1072*.  note  3. 

The  power  of  the  State  inspection  laws  is  retained,  subject  to  Where  is 
the  revision  and  control  of  Congress.  (Gibbons  v.  Ogden,  9  Wheat. tht:  l'ovver 
203-206,  210,  235,  236,  311;  Brown  v.  Maryland,  12  AVheat.  419, 
438,  439,  440.)  Story's  Const.  §  1016,  1017;  Curtis's  Hist.  Const. 
189,  281,  282,  285,  290-297. 

Inspection  laws  form  a  portion  of  the  immense  mass  of  legisla 
tion,  which  embraces  every  thing  in  the  territory  of  a  State  not  77-81. 
surrendered  to  the  general  government.  Inspection  laws,  quaran 
tine  laws,  and  health  laws,  as  well  as  laws  for  regulating  the  inter-  269. 
nal  commerce  of  a  State,  and  others,  which  respect  roads,  fences, 
&c.,  are  component  parts  of  State  legislation,  resulting  from  the 
residuary  powers  of  State  sovereignty.  No  direct  power  over  these 
is  given  to  Congress,  and,  consequently,  they  remain  subject  to 
State  legislation,  though  they  may  be  controlled  by  Congress  when 
they  interfere  with  their  acknowledged  powers.  (See  the  authori 
ties  above  cited;  Federalist,  Nos.  7,  22  ;  Gibbons  v.  Ogden,  9  Wheat. 
199-201.) 

148.  "VESSELS  BOUND." — This  clause  has  reference   to  the  Define  res- 
coasting  trade,  and  the  intercommunication  by  lakes,  bays,  rivers,  sels  bound  ? 
and  creeks — a  trade,  the  tonnage  of  which  exceeds  all  our  foreign 
tonnage  by  over  a  thousand  per  cent.     The  vastness  of  this  com 
merce  and  its  total  exemption  from  taxation,  show  the  immense 
value  of  the  Union. 

A  State  law  requiring  the  payment  of  pilotage  fees,  does  not 
infringe  this  clause.  Cooley  v.  Board  of  Wardens,  1 2  How.  314-15 ; 
Pennsylvania  v.  Wheeling  &  Belmont  Bridge  Co.  18  Id.  421. 

[7.]  No  money  shall  be  drawn  from  the  treasury,  what  are  the 

,  .  ,,  .      .  -it-i  restrictions 

but  in  consequence  of  appropriations  made  by  law ;  over  the 
and  a  regular  statement  and  account  of  the  receipts trc 
and  expenditures  of  all  public  money,  shall  be  pub 
lished  from  time  to  time. 

14?).  "No  MONEY,"  &c. — The  definition  of  money  here,  is  suffi-  What  means 
ciently  comprehensive  to  embrace  every  kind  of  currency  received  money  here? 
and  expended  by  the  government.  82-84,  98,  y9. 

The   Confederate   States    Constitution    contained   this    further  IIow  did  the 
restriction  :   "  Congress  shall  appropriate  no  money  from  the  Treas-  Confederate 
ury,  except  by  a  vote  of  two- thirds  of  both  houses,  taken  by  yeas  station  °" 
and  nays,  unless  it  be  asked  and  estimated  for  by  some  one  of  the  vary? 
heads  of  departments,  and  submitted  to  Congress  by  the  President;          » 


152  NOBILITY — OFFICE,  149-151.      [Art.  I.,  Sec.  9. 

or  for  the  purpose  of  paying  its  own  expenses  and  contingencies ;  or 
for  the  payment  of  claims  against  the  Confederate  States,  the  justice 
of  which  shall  have  been  judicially  declared  by  a  tribunal  for  the 
investigation  of  claims  against  the  government,  which  it  is  hereby 
made  the  duty  of  Congress  to  establish."  Paschal's  Annotated 
Digest,  pp.  90,  91.  As  it  was  contemplated  that  the  cabinet  officers 
should  have  seats  upon  the  floor,  with  the  privilege  of  discussion ; 
and  as  "  the  President  may  approve  any  appropriation,  and  disap 
prove  any  other  appropriation  in  the  same  bill,"  this  was  certainly 
a  great  increase  of  executive  power.  A  bill  not  estimated  for  had 
to  receive  a  two-thirds  vote,  then  encounter  opposition  by  the  head 
of  department  on  the  floor ;  and  finally  pass  by  a  two-thirds  vote 
over  the  President's  veto.  Paschal's  Annotated  Digest,  pp.  87,  88, 
Art.  I.,  §  6,  7,  Clauses,  2,  2. 

A  court  of  claims  was  created  by  the  act  of  24th  Feb.,  1855  ;  but 
the  final  power  to  allow  or  disallow  the  judgment  of  the  court, 
still  remains.  9  St.  612  ;  1  Brightly's  Digest,  198. 

What  is  tho      Whether  the  public  moneys  at  the  disposal  of  the  postmaster- 
creditor's      general,  are  technically  in  the  treasury  or  not,  the  spirit  of  this 
remedy?       provision  applies  to  them,  and  ought  to  be  faithfully  observed  in. 
their  expenditure.     3  Opin.   13.     No  other  remedy  exists  for  a 
creditor  to  the  government,  than  an  application  to  Congress  for 
payment ;  he  cannot  have  a  lien  on  the  public  property  in  his  pos 
session  or  custody.     United  States  v.  Barney,  3  Hall's  L.  J.  130 ; 
2  Wh.  Cr.  Gas.  513. 

The  reports  of  the  receipts  and  expenditures  are  made  to  Con 
gress  annually,  by  the  Secretary  of  the  Treasury  ;  and  they  form 
an  important  part  of  the  executive  documents  of  the  nation. 

what  are  the     [8.]     No  title  of  nobility  shall  be  granted  by  the 

as  to  nibi-s   United  States ;  and  no  person  holding  any  office  of 

lentB? d  pre" profit  or  trust  under  them,  shall,  without  the  consent 

of  the  Congress,  accept  of  any  present,  emolument, 

office,  or  title  of  any  kind  whatever,  from  any  king, 

prince,  or  foreign  state. 

Define  no-  15O.  "No  TITLE  OF  NOBILITY." — [Lat.  Nolilitas.~] — Being  noble, 
bility?  whether  by  antiquity  of  family,  or  letters  patent  by  the  sovereign. 
Worcester's  Die.,  NOBILITY. — Here,  the  collective  body  of  titled 
and  privileged  persons  in  a  State ;  the  aristocratic  and  patrician 
class ;  the  peerage ;  as  the  English  nobility,  the  French,  German, 
Russian  nobility.  Webster's  Die.,  NOBILITY;  1  Black.  Com.  156- 
157. 

Perfect  equality  is  the  basis  of   all  our  institutions.      Story's 
Const.  §  1351.     A  privileged   order  would  certainly   destroy  our 
152.        republican  form  of  government.     (See  sec.  X).     The  same  restric 
tion  is  upon  the  States.     Id. 

Define  151.  "  No  PERSON  HOLDING  ANY  OFFICE." — OFFICE.   [Lat.  Ojfi- 

office  ?          cium,  or  opificium ;  from  opus,  work,  and  'facto,  to  do.]    Here  a  public 

charge  or  employment.     Worcester's  Die.,  OFFICE. — Thus  a  mar- 


Cl.  7,  1.]      INHIBITIONS— STATES,  152,  153,  154.  153 

elial  of  the  United  States,  cannot  at  the  same  time,  hold  the  office 
of  commercial  agent  of  France.     6  Op.  409. 

As  to  the  object,  see  the  Federalist  (No.  84 ;  1  Tuck.  Black)  Com. 
App.  295-296;  Rawle  on  the  Const,  ch.  10,  p.  120;  Story's  Const. 
§  1352.  An  amendment  was  proposed  in  1803,  extending  the 
prohibition  to  all  private  citizens.  But  it  has  never  yet  been  rati 
fied.  Story's  Const.  §  1352. 

SEC.  X.    [1.]     No  State  shall  enter  into  any  treaty,  what  are  the 
alliance,  or  confederation  ;  grant  letters  of  marque  and  Bwtiona 
reprisal;  coin  money;  emit  bills  of  credit;  make  any  state? 
thing  but  gold  and  silver  coin  a  tender  in  payment  of 
debts;  pass  any  bill  of  attainder,  ex  post  facto  la\v,  or 
law  impairing  the  obligation  of  contracts,  or  grant  any 
title  of  nobility. 

152.   REMARK. — It  will  be  observed  that  to  Congress  is  either  Which  of 
given  or  denied  all  the  powers  herein  inhibited  to  the  States  except  these  powers 
"  to  make  any  thing  but  gold  and  silver  coin  a  legal  tender,"  "emit  ^j^i^"  °r 
bills  of  credit,"  or  "  pass  any  law  impairing  the  obligation  of  con-  the  United 
tracts."     Thus  to  the  President,  by  and  with  the  advice  of  the  States  ? 
Senate,  is  given  the  right  to  enter  into  treaties,  alliances,  or  confed-         178. 
orations.     To  Congress  is  given  the  right  to  coin  money  and  grant  97,  9S. 
letters  of  marque  and  reprisal ;  and  from  Congress  is  denied  the  99, 178. 
power  to  create  a  title  of  nobility  or  pass  ex  post  facto  laws.     About        150. 
the  power  of  Congress  to  emit  bills  of  credit,  make  tenders  in  pay-        153. 
ment  of  debts,  or  to  pass  laws  impairing  the  obligation  of  contracts, 
the  Constitution  is  silent.     Neither  of  these  powers  is  reserved  to 
the  States  under  the  tenth  amendment ;  for  they  are  expressly  pro 
hibited.    Those  who  deny  them  to  Congress  do  so  upon  the  ground,        ^^* 
that  because  they  are  denied  to  the  States  and  not  granted  to  Con 
gress,  they  do  not  exist  in  either  government.     But  on  the  other 
hand,  it  is  answered,  that  the  right  to  borrow  money  on  the  credit 
of  the  United  States  carries  the  right  to  emit  bills  of  credit  and  to  78,  82. 
make  them  lawful  tenders;  and,    as  ex  post  facto  laws   relate  to  143, 156. 
crimes,  the  power  to  pass  bankrupt  laws  carries  along  the  power 
to  impair  the  obligation  of  contracts  by  the  Federal  Government.  94-96. 
The  whole  ground  is  narrow ;  and  hence  we  have  to  be  controlled 
by  the  precedents  of  the  past  and  what  is  necessary  and  proper. 
None  deny  the  concurrent  power  of  Congress  to  make  gold  and 
silver  coin  a  tender  in  payment  of  debts.     But  the  argument  is 
that  it  can  make  nothing  else  a  lawful  tender. 

153.  TO   EXTER   INTO    ANY   TREATY,    &C.,  TO  "COIN"  MONTEY." — Why  fire 

These  powers  being  national  cannot  exist  in  the  States.     Federal-  national 
ist,  No.  44;  Rawle's  Const,  ch.  10,  p.  136.  They  belonged  to  the  Con-  j^T* 
federation,  ante,  p.  11,  Art.  G.     The  same  remark  is  true  as  to  letters  ^  195< 
of  marque   and  reprisal  and  coining  money.       Story's    Const.    § 
1354-1357. 

154.  EMIT  BILLS  OF  CREDIT. — To  constitute  a  bill  of  credit,  Define  a  b-;:i 
within  the  Constitution,  it  must  bo  issued  by  a  State,  involve  the  of  credit? 

7* 


154     BILL  OF  CREDIT-— TENDERS,  154,  155.  [Art.  L,  Sec.  10, 

faith  of  the  State,  and  be  designed  to  circulate  as  money,  on  the 
credit  of  the  State,  in  the  ordinary  uses  of  business.  Briscoe  v. 
Bank  of  Kentucky,  11  Pet.  257,  311;  Woodruff  v.  Trapnall,  10 
How.  204.  As  to  what  are  such  bills  of  credit,  see  Craig  v.  Mis- 
88.  souri,  4  Pet.  410,  434-448 ;  same  case,  8  Pet.  40 ;  Woodruff  v. 
Trapnall.  10  How.  205;  McFarland  v.  The  Bank  of  Arkansas,  4 
Ark.  410;  Darrington  v.  State  Bank  of  Alabama,  13  How.  12; 
Curran  v.  Arkansas,  15  How.  317-18.  The  loan  certificates  of 
Missouri  were  bills  of  credit,  and  formed  no  valid  consideration  for 
a  contract.  Mankster  v.  The  State,  1  Mo.  321  ;  Lopez  v.  The  State, 
1  Mo.  451;  Craig  v.  Missouri,  4  Pet.  410,  435.  Arid  see  State  of 
Indiana  v.  Warm,  6  Hill,  33  ;  Delafield  v.  State  of  Illinois,  26  Wend., 
192;  Sturges  v.  Cro  win  shield,  4  Wheat.  204-205;  Madison's  Let 
ter  to  C.  J.  Ingersol,  2d  Feb.  1811.  Story's  Const.  §  1358-1373. 

Bills  of  credit  in  the  colonies  were  understood  to  apply  to  all 
paper  money,  whether  funds  were  provided  for  their  repayment  or 
not.  (See  2  Hutch.  Hist.  208,  381.)  Story's  Const.  §  1368.  This 
author  and  the  cases  cited  exhaust  the  whole  learning  upon  the 
subject. 

"Emit  bills  of  credit,"  was  omitted  in  the  Constitution  of  tho 
Confederate  States.  The  result  was  that  many  of  the  States 
issued  large  amounts  of  bills  intended  to  circulate  as  money. 
Paschal's  Annotated  Digest,  p.  91,  Arts.  806-811. 

Where  does        155.    "  MAKE  ANY  THING  BUT  GOLD  AND  SILVER  COIN  A  TENDER 

the  power  as  IS-  PAYMENT  OF  DEBTS." — The  things  in  this  article,  not  also  pro- 
dors  reside?  hibited  to  Congress,  are  allowed  to  be  exercised  by  it,  if  the  power 
come  within  the  purview  of  either   of  the   express    or   implied 
269.        powers  granted.     Metropolitan  Bank  v.  Van  Dyck,  27  N.  Y.  Rep. 

418,  423,  442. 

63,97,98.  "The  interpretation  which  I  give  to  this   clause  is,  that  the 

United  States  possess  power  to  make  any  thing  besides  gold  and 
silver  a  legal  tender.  *  *  They  have  a  right  to  make  bank 
paper  a  legal  tender.  Much  more  then,  have  they  the  power  of 
causing  it  to  be  received  by  themselves  in  payment  of  taxes."  (4 
Elliot's  Debate?,  367,  368;  Mr.  Alston  of  South  Carolina.)  Metro 
politan  Bank  v.  Van  Dyck,  27  N.  Y.  R.  418  ;  The  Pennsylvania 
Cases,  52  Penn.  St.  R.  (2  Smith)  1-100. 

What  may  There  is  no  express  delegation  of  power  to  Congress  to  legislate 
tender  I*1  on  ^ie  su^Jec*  °^  legal  tenders,  neither  is  there  any  prohibition  in 
the  Constitution,  upon  Congress  forbidding  such  legislation,  or 
declaring  what  shall  or  shall  not  make  a  legal  tender ;  the  omission 
vras  not  accidental.  Metropolitan  Bank  v.  Van  Dyck,  27  N.  Y. 
422. 

It  was  the  opinion  of  Mr.  Madison,  that  Congress  would  have 
the  power  to  declare  bills  or  notes  issued  on  the  credit  of  the 
United  States,  a  legal  tender,  unless  prohibited  bv  the  Constitu 
tion.  Metropolitan  Bank  v.  Van  Dyck,  27  JST.  Y.*  419,  420,  422, 
42:*,  426. 

The  first  legal  tender  act  was  in  favor  of  foreign  coin.     (Act  1st 
88.         July,  1793.)    Metropolitan  Bank  v.  Van  Dyck,  27  N  Y.  424,  where 
are  cited  all  the  acts  on  the  subject. 

A  contract  dated  16th  December,  1851,  payable  "in  gold  or  silver 


Cl.1.]  CONTRACTS,  155,  156,  157.  155 

coin,  lawful  money  of  the  United  States,"  may  be  paid  in  United 
States  legal  tender  notes,  as  lawful  money  of  the  United  States. 
Rodes  v.  Bronson,  34  N.  Y.  R.  649.  When  the  contract  matured,  it 
was  payable  in  the  only  lawful  money  of  the  country.  The  power  S3,  97-99. 
of  Congress  to  declare  treasury  notes  legal  tenders  for  debts  con 
tracted  previously  to  its  passage,  as  well  as  those  contracted  sub 
sequently,  has  been  affirmed  by  this  court.  (Metropolitan  Bank 
v.  Van  Dyck,  34  N.  Y.  R.  654.)  Rodes  v.  Brouson,  34  N.  Y. 
654. 

A  law  of  Congress  to  change  the  currency  in  which  a  contract  Docs  a  law 
may  be  discharged,  does  not  impair  the  obligation  of  the  contract.  of  Congress 
(Faw  v.  Marsfceller,   2   Cr.   20 ;  Dowmans  v.  Dowmans,  1  Wash.  theVum-ncy 
Virg.  26  ;  Pong  v.  Lindsay,  Dyer,  82  ;  Barrington  v.  Potter,  Dyer,  impair  the 
81  B.  fol.  67  ;  United  States  v.  Robertson,  6  Pet.  644;  Conkey  v.  contracts? 
Hart,  4  Kern.  22;  Mason  v.  Haile,  12  Wh.  370.)     Metropolitan 
Bank  v.  Van  Dyck,  27  N.  Y.  Rep.  455-8. 

The  above  authorities  also  settle,  that  if  a  contract  be  made 
payable  in  a  particular  currency,  and  that  currency  ceases  to  exist 
before  it  is  due,  it  must  be  discharged  in  the  lawful  currency  at 
the  date  of  maturity.  See,  particularly,  Faw  v.  Marsteller,  2  Cr. 
20,  and  Metropolitan  Bank  v.  Van  Dyck,  27  N.  Y.  Rep. 

A  law  will  not  be  held  to  be  unconstitutional,  unless  it  is  clearly  TThen  will  a 
and  plainly  so.  (Morris  v.  The  People,  3  Den.  381;  Ex  parte  law  be  hel(i 
McCollom,  1  Cow.  564 ;  Fletcher  v.  Peck,  6  Cr.  87  ;  Ogden  v.  San- 
ders,  12  Wh.  29;  Adams  v.  Howe,  14  Mass.  345.)  Metropolitan 
Bank  v.  Van  Dyck,  27  N.  Y.  Rep.  460. 

156.  "PASS  ANY  BILL  OF  ATTAINDER  OR  Ex  POST  FACTO  LAW."  Define  e& 
— These  terms  relate  to  criminal  law  only ;   but  as  the  words  "  ex  post  facto 
post  facto  law,  or  law  impairing  the  obligation  of  contracts,"  are 

only  separated  by  a  comma,  many  of  the  judges  treat  the  words  in  142-143. 
this  connection  as  synonymous;   and  thus  seem  to  make  ex  post 
facto  apply  to  contracts. 

The  critical  reader  is  referred  to  the  phrase  in  Burrill's  law  dic 
tionary,  for  the  civil  law  origin  of  the  term,  wherein  will  be  found 
its  exact  application.  Quoe  ab  initio  inutilis  fuit  instiiuiio,  ex  post 
facto  -non  convalescere  non  potent.  Translated:  An  institution  or 
act  which  was  of  no  effect  at  the  beginning  (when  made  or  done), 
cannot  acquire  force  or  validity  from  after  matter.  Nunquam 
credit  ex  post  facto  prceteriti  delicti  cestimatio.  The  estimate  of  the 
character  of  a  past  offense  is  never  enhanced  by  after  matter. 
See  1  Kent's  Com.  409.  Here  follows  an  instance  where  it  is 
used  in  reference  to  contracts. 

Ex  post  facto,  literally  construed,  operating  upon  a  previous 
fact,  yet  the  restricted  sense  stated,  is  the  one  in  which  it  has 
always  been  held.  It  was  the  sense  in  which  it  was  understood 
at  the  time  the  Constitution  was  adopted,  both  in  this  country  and 
in  England.  (1  Blackstone's  Com.  46;  Calder  v.  Bull,  3  Dallas, 
390.)  Locke  v.  New  Orleans,  4  Wallace.  173,  174. 

157.  THE   OBLIGATION  OF  THE  CONTRACT. — The  laws  which  what  laws 
exist  at  the  time  and   place  of  the  making  of  the  contract,  enter  enter  into 
into  and  form  a  part  of  it;  and  they  embrace  alike  those  which  Jj^0^!*" 
affect    its    validity,    construction,    discharge    and    enforcement,  contract? 


156  CONTRACTS,    157.  [Art.  I.,  Sec.  10, 

(Green  v.  Biddlo,  8  Wheat.  92;  Bronson  v.  Kinzie.  1  How.  319; 
McCrackeu  v.  Hay  ward,  2  How.  612;  People  v.  Bond,  10  Cali- 
155-159.  fornia,  570;  Ogden  v.  Sanders,  12  Wheat.  231.)  Von  Hoffman  v. 
City  of  Quincy,  4  Wallace,  550.  (This  principle  has  been  denied. 
Farnsworth  v.  Vance,  2  Cold  well  (Tenn.)  Rep.  111.) 

160-161.  As,  if  the  acts  so  change  the  remedies  as  materially  to  impair  the 

rights  and  interests  of  the  owner,  they  are  just  as  much  a  violation 
of  the  compact  as  if  they  overturned  his  rights  and  interests. 
(Green  v.  Biddle,  8  Wheat.  92.)  Von  Hoffman  v.  City  of  Quincy, 
4  Wallace,  551.  Or  the  Illinois  two-thirds  twelve  months  stay 
law.  (1  Howard,  297.)  Id.  Or  the  State  bankrupt  insolvent 
laws,  as  to  anterior  contracts.  Sturges  v.  Crowinshield,  4  Wheat. 
122.)  Id.  But  not  as  to  subsequent  contracts.  Ogden  v. 
Sanders,  1  Wheat.  213.)  Id. 

How  are  The  ideas  of  validity  and  remedy  are  inseparable,  and  both  are 

the  validity  par{;S  of  the  obligation,  which  is  guarantied  by  the  Constitution 
connected f  against  invasion.     The  obligation  of  the  contract    "is  the   law 
which  binds  the  parties  to  perform  their  agreement."     (Sturges  v. 
Crowninshield,  12  Wheat.  257.)     Von  Hoffman  v.  City  of  Quincy, 
155.        4  Wallace,    552;    Story  v.  Furnam,    25  N.  Y.   (11    Smith),    223. 
Where  the  State  incorporated  a  bank,  with  no  other  stockholder 
than  the  State,  which  issued  bills,  for  which  all  the  bank  assets 
were  legally  bound  (and  which  provided  that  the  issues  were  re 
ceivable  for  all  public  dues),  laws  which  withdrew  the  funds  from 
the  bank,  and  appropriated  them  to  various  other  purposes  than 
paying  the  notes  of  the  bank,  impaired  the  obligation  of  the  con 
tract,   and  were  unconstitutional.     (Bronson  v.    Kinzie,   1    How. 
311;  McCracken  v.  Hayward,  2  How.  608.)     Curran  v.  The  State 
of  Arkansas,   15    Mow.   310.     The  guaranty  that  the  bills  were 
receivable  for  all  public  dues,  was  a  contract  with  the  bill-holders ; 
and  to  repeal  the  guaranty,  impaired  the  contract  as  to  bills  then 
in  circulation.     Woodruff  v.  Trapnall,    10    How.   205 ;    affirmed. 
What  of  the  Hawthorn  v.  Caleff,  2  Wall.  23.     A  law  repealing  a  bank  charter, 
repeal  of       does  no^  impair  the  obligation  of  a  contract,  because  the  property 
charters?      bona  fide  held,  is  still  a  fund  for  the  creditors.     (Muma  v.  The 
Potomac  Co.  8  Pet.  281.)     Curran  v.  Arkausas,  15  How.  310,  331 ; 
157.         This  seems  not  to  be  so,  as  to  creditors,  where  the  corporators  are 
liable  personally  for  the  issues.     Corning  v.  McCulloch,  1  Comst. 
47,  49 ;  Conant  v.  Van  Schaick.  24  Barb.  87  ;  Bronson  v.  Kinzie,  1 
How.  311 ;   Hawthorne  v.  Caleff,   Id.  311.      The  legislature  may 
repeal  the  guaranty  that  the  bills  shall  be  received  for  all  public 
dues ;  but  the  repeal  only  operates  upon  future  issues,  the  guar 
anty  remaining  as  to  those  outstanding.     Woodruff  v.  Trapnall,  10 
How.  206. 

What  is  tho  A  bridge  charter,  which  declared  that  no  other  bridge  should  be 
0*  built  within  the  designated  limits,  is  a  contract,  within  the  mean 
ing  of  the  Constitution.  Bridge  Proprietors  v.  Hoboken  Co.  1 
Wall.  146-7.  But  a  railroad  bridge  is  not  a  bridge,  within  the 
meaning  of  a  statute  of  New  Jersey  of  1790.  Bridge  Proprietors 
v.  llobokeu  Co.  1  Wall.  147.  A  railroad  bridge  does  not  neces 
sarily  impair  the  right  of  an  ordinary  toll-bridge.  (Mohawk 
Bridge  Co.  v.  Utica  &  S.  R.  R.  Co.  6  Paige,  564 ;  Thompson  v. 


Cl.  1.]  CONTRACTS,    157.  157 

New  York  &  Harlem  R.  R.  Co.  3  Sandf.  625  ;  McRae  v.  Wilming 
ton  Raleigh  R.  R.  Co.  17  Conn.  56;  Enfleld  Toll-bridge  v.  The 
Hartford  &  New  Haven  R.  R.  Co.  17  Conn.  56;)  Bridge  Pro 
prietors  v.  Hoboken,  1  "Wall.  150-1.  As  to  what  a  ferry  privi 
lege  is,  see  Conway  v.  Taylor,  1  Black.  603  ;  Hartford  Bridge  Co. 
v.  Union  Ferry  Co.  29  Conn.  210.  It  may  be  granted  by  Ken 
tucky  without  the  concurrent  assent  of  Ohio.  Id.  (Cites  Trustees 
of  Newport  v.  Taylor,  6  J.  J.  Marsh,  134.) 

A   contract   is   an  agreement  to  do  or  not  to  do  a  particular  Define  A 
tiling.     (Sturges  v.  Crowinshield,  4  Wheat.  197  ;  Green  v.  Biddle,  contract  ? 
8  Wheat.  92;  Ogden  v.  Saunders,   12  Wheat.  256,  297,  302,  316,        160. 
335;   Gordon  v.  Prince,  3  Wash.  C.  C.  Rep.  319.)     Story's  Const. 
§  1376. 

This  provision  has  never  been  understood  to  embrace  other  con-  To  what 
tracts  than  those  which  respect  property,  or  some  object  of  value,  (^"tr^)tlf9 
and  confer  rights  which  may  be  asserted  in  a  court  of  justice,  the  iablbl- 
Dartmouth  College  v.  Woodward,  4  Wh.  629.  A  private  charter  tion  apply  ? 
is  such  a  contract.  Id.  518.  So  also  an  act  incorporating  a  bank 
ing  institution.  Providence  Bank  v.  Billings,  4  Pet.  514  ;  Gordon 
v.  Appeal  Tax  Court,  3  How.  1 33 ;  Planter's  Bank  v.  Sharp,  6  Id. 
301 ;  Curran  v.  Arkansas,  15  Id.  304.  And  a  grant  of  land  by  the 
legislature  of  a  State.  Fletcher  v.  Peck,  6  Cr.  87  ;  Terrett  v.  Tay 
lor,  9  Id.  43.  And  so  is  a  compact  between  two  States.  Green  v. 
Biddle,  8  Wh.  1;  Allen  v.  McKean,  1  Sumn.  276.  And  see  2 
Pars,  on  Cont.  509.  An  appointment  to  a  salaried  office,  however, 
is  not  a  contract,  within  the  meaning  of  the  Constitution.  Butler 
v.  Pennsylvania,  10  How.  402;  Commonwealth  v.  Mann,  5  W.  & 
S.  418  ;  Commonwealth  v.  Bacon,  6  S.  &  R.  322  ;  Barker  v.  Pitts 
burgh,  4  Barr,  49;  Jones  v.  Shaw,  15  Tex.  577.  All  contracts 
are  subject  to  the  right  of  eminent  domain  existing  in  the  several 
States ;  and  the  exercise  of  this  power  does  not  conflict  with  the 
Constitution.  West  River  Bridge  Co.  v.  Dix,  6  How.  507  ;  Rundle 
v.  Delaware  &  Raritan  Canal  Co.,  14  Id.  80  ;  Tiie  State  v.  De  Les- 
dernier,  7  Tex.  99. 

It  is  a  compact  between  two  or  more  persons.     (Fletcher  v.        160. 
Peck,  6    Cranch,    136;  S.  0.  2  Pet.  Cond.    321.)      Story's  Const. 
§  1376. 

A  law  of  a  State,  issuing  transferable  swamp  land-scrip,  and 
exempting  the  land  from  taxation,  for  ten  years  or  until  reclaimed, 
constituted  a  contract,  between  the  State  and  the  holders  of  the 
land-scrip,  issued  under  the  act.  McGee  v.  Mathis,  4  Wallace, 
15.;>. 

An  act  of  incorporation  is  a  contract  between  the  State  and  the  Is  an  act  of 
stockholders.     All  courts,  at  this  day,  are  estopped  from  question-  [J^'rP°ra" 
ing  the  doctrine.  (Dartmouth  College  v.  Woodward,  4  Wheat.  418.)  contract? 
The  Binghampton  Bridge,  3  Wallace,  72. 

Such  contracts  are  construed  liberally  by  the  government.  The 
Binghampton  Bridge,  3  Wallace.  74.  Nothing  is  to  be  taken  by 
iutendment  againsi  the  State.  The  Binghampton  Bridge,  3  Wal 
lace,  75;  The  Charles  River  Bridge,  11  Peters,  544;  Jefferson  Br. 
Bank  v.  Skelley,  1  Black.  446.  But  the  State  may  grant  fran 
chises  by  reference  to  another  statute  on  the  same  subject-matter. 


158 


RETROSPECTIVE,    158.          [Art.  L,  Sec.  10, 


"What  con 
tracts  are 
included  ? 

155. 


Id.  After  the  grant  of  such  franchises,  the  restraint  is  upon  the 
legislature  itself.  Id. 

The  Supreme  Court  of  the  United  States  will  determine  for 
itself,  irrespective  of  the  State  decisions,  what  is  the  contract  of 
a  State,  Jefferson  Branch  Bank  v.  Skelley,  1  Black  (U.  S.)f  442, 
443. 

It  includes  executory  as  well  as  executed  contracts.  (Fletcher  v. 
Peck,  6  Cranch,  137;  s.  0.  2  Pet.  Cond.  R.  321,  322.)  Story's 
Const.  §  1376.  Whoever  may  be  the  parties  to  them.  (Fletcher  v. 
Peck,  6  Cranch,  87.)  Von  Hoffman  v.  City  of  Quiucy,  4  Wallace, 
549. 

Because  the  State  is  not  a  single  sovereign,  but  a  part  of  the 
Union,  whose  Constitution  is  supreme  and  imposes  .limits  upon  the 
legislatures  of  the  several  States.  (New  Jersey  v.  Wilson,  7 
Cranch.  164;  Terret  v.  Taylor,  9  Cranch,  43.)  Von  Hoffman  v. 
City  of  Quincy,  4  Wallace,  550. 

Also  express  and  implied  contracts  The  grantor  is  estopped  by 
both.  (Fletcher  v.  Peck,  6  Cr.  R.  137  ;  s.  C.  2  Cond.  R.  321,  322; 
Dartmouth  College  v.  Woodward,  4  Wheat.  R.  657,  658,  688,  689.) 
1  Story's  Const.  §  1377. 

And  assessments  upon  the  stockholders  of  banks  which  have 
gone  into  liquidation.  Commonwealth  v.  Cochituate  Bank,  3  Allen, 
Mass.  42. 


What  of 
retrospec 
tive  laws? 

671. 


155-15G. 


15§.  MERELY  RETROSPECTIVE. — Because  a  law  is  merely  retro 
spective,  does  not  bring  it  within  the  prohibition.  Locke  v.  New 
Orleans,  4  Wallace,  173. 

The  Constitution  does  not  prohibit  the  States  from  passing  retro 
spective  laws  generally,  but  only  ex  post  facto  laws.  Watson  v. 
Mercer,  8  Pet.  110.  Retrospective  laws,  divesting  vested  rights. 
are  impolitic  and  unjust;  but  they  are  not  ex  post  facto  laws  within 
the  meaning  of  the  Constitution,  nor  repugnant  to  its  provisions 
(Albee  v.  May,  2  Payne,  74),  unless  they  impair  the 'obligation  of  a 
contract.  Baltimore  &  Susquehanua  R.  R.  Co.  v.  Nesbit,  10  IIo\v. 
401.  Should  a  statute  declare,  contrary  to  the  general  principles 
of  law,  that  contracts  founded  upon  an  illegal  or  immoral  consider 
ation,  whether  in  existence  at  the  time  of  passing  the  statute,  or 
which  might  hereafter  be  entered  into,  should  nevertheless  be  vaiid 
and  binding  upon  the  parties,  all  would  admit  the  retrospective 
character  of  the  enactment ;  but  it  would  not  be  repugnant  to  the 
Constitution  of  the  United  States.  Satterlee  v.  Mathewson,  2  Pet. 
412;  Curran  v.  Arkansas,  15  How.  10;  Aspi n wall  v.  The  Commis 
sioners,  &c.,  22  How.  365;  Dartmouth  College  v.  Woodward,  4 
Wh.  628.  For  the  same  inhibitions  in  the  Constitution  of  Texas, 
see  PaschaPs  Annotated  Dig.  168,  170. 

The  prohibition  has  no  reference  to  the  degree  of  impairment. 
The  largest  and  least  are  alike  forbidden.  St urges  v.  CrowinshieU, 
12  Wheat.  257;  Green  v.  Biddle,  8  Wheat.  84;  Von  Hoffman  v. 
City  of  Quincy,  4  Wall.  552  ;  Planter's  Bank  v.  Sharp.  6  How.  327  ; 
Farnsworth  v.  Reives,  2  Cold  well,  111.  Its  value  must  not  be 
diminished  by  legislation.  (Planter's  Bank  v.  Sharp,  6  How.  327.) 
Von  Hoffman  v.  City  of  Quincy,  4  Wallace,  553. 


01.  I.]  EXEMPTIONS-STAY  LAWS,    159,    160.  159 

That  is  directly,  and  not  incidentally,  and  only  by  consequence. 
Yon  Hoffman  v.  City  of  Quincy,  4  Wall.  553. 

The  States  may  abolish  imprisonment  for  debt.  Beers  v.  Hough- 
ton,  9  Peters,  359;  Mason  v.  Haile,  12  Peters,  373;  Sturgis  v. 
Crowninshield,  4  Peters,  200.)  Von  Hoffman  v.  City  of  Quincy,  4 
Wallace,  553. 

159.  EXEMPTION'S. — And  the   States  may  exempt  from  forced  How  do 
sale  the  necessary  implements  of  agriculture,  the  tools  of  a  me-  exemption 
chanic,  and  articles  of  necessity  in  household  furniture — the  things  contracts  ?  *" 
which   in  civilized  communities  belong  to  the  remedy.     Von  Hoff- 157-160 
man  v.  City  of  Quincy,  4  Wall.  553.     The  exact  limit  between  right 

and  remedy  must  be  determined  in  every  case  upon  us  own  circum 
stances.  Id.  If  the  right  be  impaired  the  law  is  void.  (Bronson 
v.  Kinzie,  1  Howard,  311 ;  McCracken  v.  Hay  ward,  2  How.  608.) 
Von  Hoffman  v.  City  of  Quincy,  4  Wallace,  554.  The  question 
between  the  remedy  and  the  other  parts  of  the  contract  cannot 
be  considered  res  inteyra.  (1  Kent's  Com.  456;  Sedg.  on  Stat. 
and  Const.  Law,  652;  Mason  v.  Haile,  12  Wheat.  379.)  Id. 

A  State  may  disable  itself  by  contract  from  exercising  its  taxing 
power  in  particular  cases.  (New  Jersey  v.  Wilson,  7  Cranch,  166 ; 
Dodge  v.  Wcolsey,  18  How.  331 ;  Piqua  Branch  v.  Knoop,  16  How. 
331.)  Von  Hoffman  v.  City  of  Quincy,  4  Wallace,  554. 

The  legal  obligation  of  a  contract  consists  in  the  remedy  given  In  what 
by  law  to  enforce  its  performance,  or  to  make  compensation  for  the  does  tl?l 
failure  of  performance.  Johnson  v.  Higgens,  3  Metcf.  (Ky.),  566.  [ion  cun 
A  law  which  forbade  the  rendering  of  judgments  for  a  given  time 
was  constitutional.  Id.  So,  where  a  State  has  authorized  a  muni-  157 
cipal  corporation  to  contract  and  tax,  to  meet  its  engagements,  the 
power  cannot  be  withdrawn  until  the  contract  is  satisfied.  (People 
v.  Bell,  10  California,  570  ;  Dominic  v.  Sayre,  3  Sand.  555.)  Von 
Hoffman  v.  City  of  Quincy,  4  Wallace,  554.  It  is  a  trust  which 
neither  the  State  nor  corporation  can  annul.  Id. 

160.  STAY    LAWS. — Statutes  relating  to  levies  on  executions  How  do 
may  be  applicable  to  levies  made  before  their  enactment,  as  they  ?tay  !avvs 
affect  the  remedy  and  not  the   right.     Grosvcnor  v.   Chesley,   48  con 
Maine,  369;    Coriell  v.  Ham,  4  Greene  (Iowa).  455  ;  Swift  v.  Flet- 159 
cher,  6  Minn.  550. 

But  redemption  laws,  as  to  judgments  upon  anterior  contracts, 
are  unconstitutional.  Scobey  v.  Gibson,  17  Ind.  572;  Iglehart  v. 
Wolfin,  20  Ind.  32. 

And  the  laws  for  the  release  and  discharge  of  securities.  Swift 
v.  Fletcher,  6  Minn.  550. 

So  of  laws  allowing  the  debtor  to  remove  without  subjecting  his 
property  to  sale,  so  far  as  concerns  judgment  liens  accruing  prior 
to  their  passage.  Tillotson  v.  Millard,  7  Minn.  513. 

The  legislature  cannot  extend  ihe  time  for  redeeming  lands  sold 
at  tax  sales.  Robinson  v.  House,  13  Wis.  341.  Nor  apply  ap 
praisement  laws  to  anterior  contracts.  Rosier  v.  Hale,  10  Iowa 

The  Supreme  Court  of  the  United  States  will  determine  for  itself,  JJe. 
inespective  of  the  decision  of  the  State  courts,  what  is  a  contract  strue? 


160 


CONTRACTS— REMEDY,    161.      [Art.  I.  bee.  10, 


r>Y  what       within  the  meaning  of  the  Constitution.    Jefferson  Branch  Bank  v. 

fT  of  r^s  S>  Skelle7>  *  Blackt  443.     A  law  authorizing  a  redemption  of  property 

be  'governed  so^  by  f°rced  sale,  impairs  the  obligation  of  a  contract,  and  is 

in  defining  a  unconstitutional  as  to  mortgages  and  contracts  of  anterior  date  to 

contract?      ^ne  redemption  law.     Bronson  v.  Kinzie,  1  How.  311  ;   McCracken 

15o,109.        y   Hayward,  2   How.  612-615;    Gantly  v.  Ewing,  3   How.  71G-7; 

Howard  v.  Bugbee,  2-4  How.  464-5  ;    Bunn  v.  Gorgus,  41   Penn. 

St.  R.  441  ;  Weaver  v.  Mailot,  15  La.  395  ;  Billmeyer  v.  Evans.  40 

Penn.  St.  R.  324.     The  legislature  of  a  State  has  a  right  to  bind 

the  State  by  contract,  so  as  to  exempt  persons,  corporations,  arid 

things  from  taxation.     The  Richmond  R.  R.  Co.  v.  The  Louisa  R. 

R.  Co.  13  How.  71  ;  Gordon  v.  The  Appeal  Tax  Court,  3  How.  33; 

New  Jersey  v.  Wilson,    7  Cr.    164;    Jefferson   Branch   Bank   v. 

Skelley,  1  Black,  447-8.   But  the  intention  to  exempt  must  be  clear. 

Id.  ;    Gilman  v.  The  City  of  Sheboygan,   2  Black,  513.      And  the 

privikgia  favordbilia  will  be  narrowly  construed.      Rector,  &c.  v. 

The  County  of  Philadelphia,  24  How.  302. 


Do  lawa 
which  affect 
the  remedy 
only 
impair  ? 


What  of 
usurious 
coutr;.ct£  ? 


Costs? 


161.  LAWS  WHICH  AFFECT  THE  REMEDY  ONLY.  —  Where  thero 
ig  no  direct  constitutional  prohibition,  a  State  may  pass  retrospect 
ive  laws,  such  as  in  their  operation  may  affect  suits  pending,  an  I 
give  to  a  party  a  remedy  which  he  did  not  previously  possess,  or 
modify  an  existing  remedy,  or  remove  an  impediment  in  the  way 
of  legal  proceedings.  (Hepburn  v.  Cnrts,  7  Watts,  300  ;  Shenly  v. 
Commonwealth,  36  Penn.  State,  57;  Foster  v.  Essex  Bank,  16 
Mass.  245;  Rich  v.  Flanders,  39  N.  If.  325.)  Freeborn  v.  Smith, 
2  Wall.  175.  The  legislature  may  pass  private  acts  authorizing  sales 
by  administrators,  in  a  different  manner  from  the  general  statutes 
regulating  the  subject.  (Mason  v.  Wait,  4  Scam.  134.)  Florentine 
v.  Barton,  2  Wall.  216-7.  Judicial  sales  of  lands  to  pay  the  debts 
of  a  decedent's  estate,  are  in  the  nature  of  a  proceeding  in  rem, 
and  the  purchaser  need  only  look  to  the  order  of  sale.  The  State 
court  is  presumed  to  have  correctly  settled  every  judicial  question, 
including  the  constitutionality  -of  the  act  of  assembly.  (Grignou 
v.  Astor,  3  How.  319.)  Florentine  v.  Barton,  2  Wall.  216.  The 
inhibition  against  impairing  the  obligation  of  contracts  is  upon  the 
States  not  the  United  States.  (Evans  v.  Eaton,  1  Pet.  C.  C.  Rep. 
322;  Tn  the  matter  of  Klein,  1  How.  277;  Kunzler  v.  Kohaus,  5 
Hill,  325.)  Metropolitan  Bank  v.  Van  Dyck,  27  N.  Y.  453. 

The  cases  which  draw  the  distinction  between  tx  post  facto 
laws;  the  laws  impairing  the  obligation  of  contracts;  retrospective 
laws,  and  laws  which  only  affect  the  remedy,  will  be  found  fully 
collected  in  Paschal's  Annotated  Digest,  notes  61,  157,  168,  410, 
1107-1109.  And  for  a  very  learned  and  exhaustive  treatise  upon 
the  whole  subject,  see  Story's  Const.  Book  III.  ch.  XXXIV., 
§  1374-1400. 

The  States  may  pass  laws  validating  contracts  which  were 
usurious  and  void  when  made.  Welsh  v.  Wadsworth,  30  Conn. 
149.  But  not  to  operate  unreasonably  and  unjustly  upon  antece 
dent  rights.  Id.  And  may  change  the  interest  laws  relieving 
from  penalties.  Wood  v.  Kennedy,  19  Ind.  68.  And  the  laws  of 
costs  as  to  pending  suits.  Taylor  v.  Keeler,  30  Conn.  324.  But 
not  the  compensation  of  rights  already  vested.  State  v.  Auditor, 


01.1,2.]  INHIBITIONS,    162.  161 

33   Miss.    287.     And    providing  for  the   validity   of   marriages. 
Goshen  v.  Richman,   4  Allen   (Mass.),  458.     And   changing   the 
presumptions  in  favor  of  tax  sales.     Hickor  v.  Tallman,  38  Barb.  Evidence  ? 
X.  Y.   608.     And  curing  irregularities  in  conveyances,  as  to  the 
parties  and    subsequent  purchasers ;   but  not  to  disturb   vested  Convey- 
rights.     Thompson  v.  Morgan,  6  Minn.  292.  ances? 

[2.]     No  State   shall,  without  the   consent  of  the  what  are 

~  .  .  the  inhibi- 

Congress,  lay  any  imposts  or  duties  on  imports  or  ex-  tions  upon 

If,  ~       the  States 

ports,  except  what  may  be   absolutely  necessary  ror  without  tho 

....  ,  -.     ,  T  „ consent  of 

executing  its  inspection  laws ;  and  the  net  produce  or  congress  ? 
all  duties  and  imposts,  laid  by  any  State  on  imports 
or  exports,  shall  be  for  the  use  of  the  treasury  of  the 
United  States ;  and  all  such  laws  shall  be  subject  to  the 
revision  and  control  of  the  Congress.  [3.]  No  State 
shall,  without  the  consent  of  Congress,  lay  any  duty 
of  tonnage,  keep  troops  or  ships-of-war  in  time  of 
peace,  enter  into  any  agreement  or  compact  with 
another  State,  or  with  a  foreign  power,  or  engage  in 
war,  unless  actually  invaded,  or  in  such  imminent 
danger  as  will  not  admit  of  delay. 

162.  For  the  definitions   of    "imposts"    and    "duties"   see  75-TT. 
notes  75  to  77.     For  a  history  of  this  clause,  see  journals  of  the 
Convention,  222,  227,  275,  301,  303,  318,  377  and  378. 

"AN  IMPOST  OR  DUTY  ON  IMPORTS,"  is  a  custom  or  tax  levied  What  is  a 
on   articles  brought  into  the  country.      Brown  v.  Maryland,  12  duty  on 
Wheat.  446,  447.     Imports  are  things^imported — the  articles  them-  iniP°r1 
selves  which  are  brought  into  the  country.    It  is  not  merely  a  duty 
on  the  act  of  importation,  but  it  is  a  duty  on  the  thing  imported.        138. 
It  is  not  confined  to  a  duty  levied  while  the  article   is  entering       274. 
the  country,  but  extends  to  a  duty  levied  after  it  has  entered  the 
country.     (Brown  v.  Maryland,  12  Wheat.  419,  446,  447.)     Story's  86-89. 
Const.   §  1019;  see  Gibbons  v.  Ogden,  9  Wheat.   199-201.     The 
power   to   impose    duties   on  imports   is   exclusive    in    Congress. 
Pervear  v.  The  Commonwealth,  5  Wall.  479.     A  charge  on  vessels 
by  the  State  for  the  benefit  of  the  master  and  warders  of  the  port 
is  unconstitutional.     The   Southern   Steamship   Company  v.  The 
Master,  &c.  6  Wall. 

It  was  really  intended  to  make  the  vast  inter-state  commerce  as 
nearly  free  as  possible.  The  ordinance  of  the  city  of  Houston 
requiring  wharfage  duties  of  steamboats,  does  not  infringe  this 
provision  of  the  Constitution.  Sterrett  v.  Houston,  14  Tex.  166. 

"  EXCLPT  WHAT  MAY  BE   ABSOLUTELY   NECESSARY." — This   18   the  Necessary  f 

strongest  qualification  of  "  necessary  "     See  McCulloch  v.  Mary 
land,  4  Wheat.  316  ;  Kent's  Com.  398-401 ;  Story's  Const.  §  1033. 


162 


TONNAGE— EXECUTIVE,  163,  164.  [Art.  II.,  Sec.  1, 


Inspection  f 


What  is 
tonnage  ? 


Define 
troops  ? 

122, 123. 


Define 
agreement 
or  compact  ? 

152. 

ITS. 

223-225. 


Where  Is 
the  execu 
tive  power? 


"INSPECTION." — The  tax  or  duty  of  inspection,  is  frequently,  if 
not  always,  paid  while  the  article  is  in  the  bosom  of  the  country. 
Brown  v.  Maryland,  12  Wheat.  420. 

The  exception  was  made  because  the  tax  would  otherwise  have 
been  within  the  prohibition.  Id.  See  the  subject  discussed.  Id. 

The  State  has  no  right  to  tax  the  goods  imported,  in  the  hands 
of  the  importer.  Id.  This  language  means  the  same  thing  as  the 
inhibition  on  the  United  States  against  laying  a  tax  on  articles 
exported  from  any  State.  Id.  Story's  Const.  §  1030.  Upon  the 
same  principles,  or  their  analogies,  it  was  held  that  the  State  of 
Maryland  had  not  the  constitutional  right  to  tax  the  branch  of  the 
United  States  bank  located  in  Maryland.  McCulloch  v.  Maryland, 
1  Wheat.  316;  Kent's  Com.  398,  401  ;  Story's  Const.  §  103:5-1053. 
The  sale  of  liquors  within  a  State  is  subject  exclusively  to  State 
control.  (License  cases,  5  Wall.  462.)  Pervear  v.  The  Common 
wealth,  5  Wall.  479. 

163.  u  LAY  ANY  DUTY  OF  TONNAGE.  &c." — This  form  of  expres 
sion  occurs  nowhere  else  in  the  Constitution.    TONNAGE  [tonnayium] 
is  a  custom  or  impost  upon  wines  or  other  merchandise  exported 
or   imported,    according   to    a   certain   rate   per   ton.     (Spelman ; 
Cowell.)     Burrill's  Law  Die. :   A  duty  or  impost  upon  ships  esti 
mated  per  ton.     Webster's  Die.,  TONNAGE. 

164.  "KEEP  TROOPS  OR  SIIIPS-OF-WAR  IN  TIME  OF  PEACE." — 
This  means  organized  troops,  or  armies,  and  a  navy ;  because  these 
are  national  powers.     See  Articles  of  Confederation,  ante,  p.  12, 
Art.   VI. ;  Story's  Const.  §  1401-1409.     In  certain  emergencies, 
States  may  raise  troops  to  repel  invasions  or  suppress  insurrections. 
Story's  Const.  §  1404.     Luther  v.  Borden,  7  How.  1. 

"  AGREEMENT  OR  COMPACT,"  properly  applies  to  such  as  regarded 
what  might  be  deemed  mere  private  rights  of  sovereignty,  suck 
as  boundaries,  land,  and  other  internal  regulations  lor  the  mutual 
comfort  and  convenience  of  States  bordering  on  each  other.  Story's 
Const.  §  1403.  These  words  are  used  in  their  broadest  sense;  they 
were  intended  to  cut  off  all  negotiation  and  intercourse  between  the 
State  authorities  and  foreign  nations.  Holmes  v.  Jennison,  14  Pet. 
572,  574.  And,  therefore,  no  State  can,  without  the  consent  of 
Congress,  enter  into  any  agreement  or  compact,  to  deliver  up  fugi 
tives  from  justice  from  a  foreign  State,  who  may  be  found  within 
its  limits.  Id.;  3  Opin.  661.  This  prohibition  is  political  in  its 
character,  and  has  no  reference  to  a  mere  matter  of  contract,  or  to 
the  grant  of  a  franchise  which  in  nowise  conflicts  with  the  powers 
delegated  to  the  general  government  by  the  States.  Union  Branch 
E.  R.  Co.  v.  East  Tennessee  &  Georgia  R.  R.  Co.  14  G-a.  327.  A. 
compact  entered  into  between  two  States,  with  the  assent  of  Con 
gress,  is  binding  on  those  States  and  the  citizens  of  each.  Fleeter 
v.  Pool,  1  McLean,  185.  See  Story's  Const.  §  1403;  1  Tucker's 
Black.  Com.  Apo.  301. 

ARTICLE  II. 

SEC.  I. — [l.J  The  executive  power  shall  be  vested 
in  a  President  of  the  United  States  of  America.  He 
shall  hold  his  office  during  the  term  of  four  years,  and 


01.  1.] 


PKESIDE]NTS,  165,  166. 


163 


together  with  the  Vice-President,  chosen  for  the  same  The  term 

,          ,  T  .,  ,,  of  office? 

term,  be  elected  as  follows. 

165.  THE  EXECUTIVE  POWER. — The  object  of  this  department  is  What  is  the 
to  insure  the  execution  of  the  laws.     1  Kent's  Com.  285.     With  obJect  ? 
energy  in  the  executive  and  safety  to  the  people.     Story's  Const. 

§  1417.  The  ingredients  for  energy,  are  unity,  duration,  adequate 
provisions  for  its  support ;  and,  for  safety,  a  due  dependence  on 
the  people,  and  a  due  responsibility  to  the  people.  (Federalist,  No. 
70;  1  Kent's  Com.  Lect.  13,  pp.  253,  254.)  Story's  Const.  §  1418. 

The  powers  of  the  President  are  not  executive  only.     The  veto  Define  the 
power  and  the  appointing  power  are  not  strictly  executive  powers ;  executive 
no  more  so  than  when  exercised  by  Congress  or  the  States.    Bates  p(m 
on  Habeas    Corpus,  5th  July,  1861.     He  is  a  civil  magistrate,  to  67, 199. 
whom  ail  military  officers  are  subordinate.    Id.     In  calling  out  the 
militia  to  see  the  laws  faithfully  executed,   he  acts    as    a  civil 
magistrate    upon  the  same    principle  that  a  court   calls   out   the 
posse.     Id.     In  times  of  great  danger,  when  the  very  existence  of 
the  nation  is  assailed,  the  President  may  order  military  arrests.  Id. 

We  must  not  forget  that  this  power  of  appointment  to  office  is  179. 
essentially  an  executive  function.  It  belongs  essentially  to  the  174. 
executive  department  rather  than  to  the  legislative  or  judicial.  If 
no  provision  on  the  subject  had  been  made  by  the  Constitution,  it 
would  have  been  held  appurtenant  to  the  President  as  the  head  of 
the  executive  department  specially  charged  with  the  execution  of 
the  laws.  Stanbery  on  the  executive  power.  See  Confederation, 
ante  Article  VI.  p.  14;  2  Elliot's  Debates,  358;  Federalist,  Nos. 
67,  70,  1  Kent's  Com.  271-303;  Journal  of  Convention,  68,  89, 
96,  136,  211,  222,  324,  332,  333;  2  Pitk.'s  Hist.  252;  2  Curtis' 
Hist,  of  Const,  ch.  III.,  pp.  56-60;  Story's  Const,  ch.  XXXVL, 
§  1440-1448,  and  voluminous  notes  of  the  3d  edition. 

A  proposition  was  made  in  the  Convention  for  an  executive 
with  a  plurality  of  persons.  Journal  of  Convention,  124.  Mr. 
Calhoun  advocated  a  dual  executive  at  a  later  day.  See  Cal- 
houn's  Essay  on  the  Const. ;  Story's  Const.  §  1426-1429. 

166.  The  following  is  the  list  of  Presidents  who  have  been  Who  have 


chosen  under  this  Constitution  :  — 

been  the 

NAME.                                   NATIVITY.                         RISIDENC3. 

SKEVICZ. 

presidents  f 

George  Washington. 

Virginia. 

Virginia. 

4  March, 

1789, 

4  March, 

1793.  When  and 

George  Washington. 
John  Adams. 

Massachusetts. 

Massachusetts). 

tt      ti 

1793, 
1797, 

<"<      « 

1797.  how  long? 

Thomas  Jefl'ergon. 
Thomas  Jefferson. 

Virginia. 

Virginia. 

u       " 

1801, 
1805, 

"      " 

180o! 
1809. 

James  Madison. 

*< 

(t 

it       it 

1809, 

ft             tt 

1813. 

James  Mi.dison. 

* 

(« 

it          tl 

1813 

tl             tt 

1817. 

James  Monroe. 

It 

M 

It       « 

1817, 

tt             tt 

1*21. 

James  Monroe. 

*< 

« 

tt       11 

1821, 

tt             tt 

I8v;5. 

John  Quincv  Adams. 

Massachusetts. 

Massachusetts. 

It       it 

18i5, 

tl             tt 

1829. 

Andrew  Jackson. 

Stuth  Carolina. 

Tennessee. 

tl       tt 

182S, 

tt             f( 

1833. 

Andrew  Jackson. 

tt              it 

« 

tl       t( 

1»33, 

tt             tl 

1837. 

Martin  Van  Huren. 

New  York. 

New  York. 

tt       tt 

1837. 

tl             tl 

1841. 

William  H.  Harrison. 

Virginia. 

Ohio. 

tt       ft 

1841, 

4   April, 

1841. 

John  Tyler. 

Virginia. 

6    April, 

1841, 

4  March, 

1845. 

James  iv.   Polk. 
Zacharv  Taylor. 

North  Carolina. 
Virginia. 

Luu'giana. 

it'    it       ' 

isw' 

9     July, 

ifcoo! 

Mil  lard  Fil'more. 

New  York. 

New  York. 

10     Julv, 

IS**, 

4  March, 

1853. 

Franklin  Pierce. 

New  Hampshire. 

New  Hampshire. 

4  March, 

1863, 

it      tt 

1857. 

James  Buchanan. 

Pennsylvania 

Pennsylvania. 

a       tt 

1357  j 

tt      « 

1861. 

Abraham  Lincoln. 

Kentucky. 

Illi'nois. 

tt       tt 

1*81, 

tt      tt 

1865. 

Abraham  Lincoln. 

** 

tt       tt 

18K5, 

14   Apiil. 

1865. 

Andrew  Johnson. 

North  Carolina. 

Teuneaaefi. 

15  April, 

1865, 

164 


ELECTORS,   167.  [Art.  IL,  Amdt.  XII.,  Sec.  1, 


ow  are 

doctors 


[2.]  Each  State  shall  appoint,  in  such  manner  as  the 
appointed?  legislature  thereof  may  direct,  a  number  of  electors 
equal  to  the  whole  number  of  senators  and  repre 
sentatives  to  which  the  State  may  be  entitled  in  the 
Congress ;  but  no  senator  or  representative,  or  person 
holding  an  office  of  trust  or  profit  under  the  United 
States,  shall  be  appointed  an  elector. 


Define 
electors  ? 


16-17. 


167.  "ELECTORS,"  as  here  used,  mean  the  persons  chosen  to 
cast  the  votes  in  the  first  instance  for  President  and  Vice-Presi- 
dent.  All  the  legislatures  have,  long  since,  directed  that  they  shall 
be  "  appointed,"  that  is,  chosen  by  the  people,  except  South  Caro 
lina,  which  appointed  by  the  legislature.  See  Story's  Const. 
§  1472;  3  Elliot's  Debates,  100,  101. 

Thus  the  "  electors  "  for  members  of  Congress,  indirectly  choose 
the  "  electors  "  for  President,  Vice-President,  and  Senators. 

But  the  House  of  ^Representatives  in  one  contingency,  and  the 
Senate  in  another,  may  choose  the  President.  Therefore,  however 
chosen,  it  results  that  the  President  is,  indirectly,  chosen  by  the 
same  electors  who  choose  the  popular  branch  of  the  State  legisla 
ture. 

As  there  are  now  thirty-seven  States,  the  senators  represent 
74  electoral  votes ;  add  to  these  243  representatives,  and  the  elec 
toral  vote  of  1868  will  be  317  ;  necessary  to  a  choice  159.  That  is 
if  no  new  State  be  added  by  the  second  session  of  the  fortieth 
to  a  choice  ?  Congress  ;  and  if  all  the  non-reconstructed  States  be  allowed  to  vote. 
The  number  of  electoral  votes  to  which  Virginia,  Xorth  and  South 
Carolina,  Georgia,  Florida,  Alabama,  Mississippi,  Louisiana.  Arkan 
sas  and  Texas,  would  be  entitled,  under  the  apportionment  are  70. 

The  question  as  to  whether  these  States  shall  vote,  and  who  shall 
choose  the  erectors,  is  now  one  of  the  exciting  issues  of  the  day. 
See  Story's  Const.  §  1454-1488. 

The  attempted  independence  of  the  electors  has  failed.  Story's 
Const.  §  1463;  Eawle's  Const,  ch.  5,  p.  58. 

[ARTICLE  XII. — AMENDMENT.] 


How  many 
electors? 


Necessary 


46. 
175-1S5. 


[1],  The  electors  shall  meet  in  their  respective 
States,  and  vote  by  ballot  for  President  and  Vice-Presi- 
dent,  one  of  whom,  at  least,  shall  not  be  an  inhabitant 
of  the  same  State  with  themselves  ;  they  shall  name  in 
their  ballots  the  person  voted  for  as  President,  and  in 
distinct  ballots  the  person  voted  for  as  Vice-President ; 
HOW  are  the  and  they  shall  make  distinct  lists  of  all  persons  voted 
for  as  President,  and  of  all  persons  voted  for  as  Vice- 
President,  and  the  number  of  votes  for  each,  which 


How  is  the 
President 
elected  ? 

167. 


votes  certi- 


01.  1,  2.]  ELECTOES,   168.  165 

list  they  shall  sign  and  certify,  and  transmit  sealed  to 
the  seat  of  the   government  of  the  United    States, 
directed  to  the  President  of  the  Senate ;    the  Presi 
dent  of  the  Senate  shall,  in  the  presence  of  the  Senate 
and  House  of  Representatives,  open  all  the  certificates,  And 
and  the  votes  shall  then  be  counted  ;  the  person  hav 
ing  the  greatest  number  of  votes  for  President  shall 
be  the  President,  if  such  number  be  a  majority  of  the 
whole  number  of  electors  appointed ;  and  if  no  person 
have  such  majority,  then  from  the  persons  having  the  if  no 
highest  numbers,  not  exceeding  three,  on  the  list  of 
those  voted  for  as  President,  the  House  of  Representa 
tives  shall  choose  immediately  by  ballot  the  President. 
But  in  choosing  the  President,  the  votes  shall  be  taken  HOW  do  the 
by  States,  the  representation  from  each  State  having 
one  vote ;  a  quorum  for  this  purpose  shall  consist  of  a 
member  or  members  from  two-thirds  of  the  States,  and 
a  majority  of  all  the  States  shall  be  necessary  to  a 
choice.      And  if  the  House  of  Representatives  shall  if  the 
not  choose  a  President,  whenever  the  right  of  choice  refuse  to 
shall  devolve  upon    them,  before  the  fourth  day  of  ° 
March  next  following,  then  the  Yice-President  shall       1T2. 
act  as  President,  as  in  the  case  of  the  death  or  other 
constitutional  disability  of  the  President. 

16§.  The  original  read  as  follows : — 

"  [3.]  The  electors  shall  meet  in  their  respective  States,  and  vote  What  -was 
by  ballot  for  two  persons,  of  whom  one  at  least  shall  not  be  an  in-  the  repealed 
habitant  of  the  same  State  with  themselves.  And  they  shall 66( 
make  a  list  of  all  the  persons  voted  for,  and  of  the  number  of 
votes  for  each ;  which  list  they  shall  sign  and  certify,  and  trans 
mit  sealed  to  the  seat  of  the  government  of  the  United  States, 
directed  to  the  President  of  the  Senate.  The  President  of  the 
Senate  shall,  in  the  presence  of  the  Senate  and  House  of  Repre 
sentatives,  open  all  the  certificates,  and  the  votes  shall  then  be 
counted.  The  person  having  the  greatest  number  of  votes  shall  be 
the  President,  if  such  number  be  a  majority  of  the  whole  number 
of  electors  appointed ;  and  if  there  be  more  than  one  who  have 
such  majority,  and  have  an  equal  number  of  votes,  then  the  House 
of  Representatives  shall  immediately  choose  by  ballot  one  of  them 
for  President ;  and  if  no  person  have  a  majority,  then  from  the  five 
highest  on  the  list  the  said  House  shall  in  like  manner  choose  the 


166          YICE-P.,  1680,  1685.    [Amdt.  Art.  XII.,  Art.  II.,  Sec.  1, 


"When 
do  the 
electors 
meet  and 
Tote? 


President.  But  in  choosing  the  President,  the  votes  shall  be 
taken  by  States,  the  representation  from  each  State  having  one 
vote;  a  quorum  for  this  purpose  shall  consist  of  a  member  or 
members  from  two-thirds  of  the  States,  and  a  majority  of  all  the 
States  shall  be  necessary  to  a  choice.  In  every  case,  after  the 
choice  of  the  President,  the  person  having  the  greatest  number  of 
votes  of  the  electors  shall  be  the  Vice-President.  But  if  there 
should  remain  two  or  more  who  have  equal  votes,  the  Senate 
shall  choose  from  them  by  ballot  the  Vice-President." 

The  electors  shall  meet  on  the  first  Wednesday  in  December,  by 
act  1st  March,  1792.  1  Stat.  239.  Before  the  first  Wednesday 
in  January,  by  the  same  act.  On  the  second  Wednesday  in  Feb 
ruary,  by  the  same  act.  In  the  election  of  1864,  the  votes  of 
Louisiana,  Arkansas,  and  Tennessee  for  President  were  given,  but 
not  counted.  Virginia,  North  Carolina,  South  Carolina,  Georgia, 
Florida,  Alabama,  Mississippi,  and  Texas,  did  not  vote  in  this 
election.  On  a  motion  to  discharge  a  defendant  arrested  upon  a 
capias  ad  respondendum,  by  a  marshal  appointed  by  the  President 
de  facto,  of  the  United  States,  the  court  will  not  decide  the  question 
whether  he  has  been  duly  elected  to  that  office.  Peyton  v.  Brent, 
3  Cr.  C.  C.  424. 

If  ever  the  tranquillity  of  this  nation  is  to  be  disturbed  and  its 
liberties  endangered  by  a  struggle  for  power  it  will  be  upon  the 
subject  of  the  choice  of  a  President.  1  Kent's  Com.  274. 

If  there  be  four  candidates  and  two  of  them  have  an  equal  num 
ber  of  votes,  tho  Constitution  makes  no  provision.  Story's  Const. 
§1471. 

if  the  [3.]  The  person   having  the  greatest   number   of 

notccho9ose    votes  as  Vice-President  shall  be  the  Vice-President,  if 
President?   such  number  be  a  majority  of  the  whole  number  of 
electors  appointed ;  and  if  no  person  have  a  majority, 
12th  Amend,  then  from  the  two  highest  numbers  on  the  list  the 
Senate  shall  choose  the  Vice-President :  a  quorum  for 
the  purpose  shall  consist  of  two-thirds  of  the  whole 
number  of  Senators,  and  a  majority  of  the  whole  num 
ber  shall  be  necessary  to  a  choice. 

168a.  There  has,  thus  far,  been  no  necessity  for  the  Senate  to 
exercise  this  power.  For  a  list  of  Vice-Presidents  see  note  17. 


What  are 
the  quulift- 

dent? 

12th  Amend. 


[3.]  But  no  person  constitutionally  ineligible  to  the 
office  of  President  shall  be  eligible  to  that  of  Vice- 
President,  of  the  United  States. 

1686,  For  commentaries  on  this  amendment  see  1  Kent's 
Com.  260,  262;  Ilawle  on  the  Const,  ch.  5,  pp.  54,  55;  Story's 
Const.  §  1468-1473. 


01.2-4.]  PKESIDENT,    168?,    169.  167 

[3.]  The  Congress  may  determine  the  time  of  choos-wimt  is  the 
ing  the  electors,  and  the  day  on  which  they  shall  give  KniiVss 
their  votes;  which  day  shall  be  the  same  throughout  J^e of6 
the  United  States. 

16§c.  On  the  Tuesday  next  after  the  first  Monday  in  Novem-  When  to  be 
ber;  by  act  23d  January,  1845.     5  Stat.  721.  h«1(i? 

On  the  first  Wednesday  in  December;  by  act  1st  March,  1792. 
\  Stat.  239.  All  the  States  now  choose  the  electors  by  the  people. 
See  Story's  Const.  §  1475,  1476. 

[4.]  No  person  except  a  natural  born  citizen,  or  a  what  are 
citizen  of  the  United  States  at  the  time  of  the  adoption  cation*  fur" 
of  this  Constitution,  shall  be  eligible  to  the  office  of  Pl 
President;  neither  shall  any  person  be  eligible  to  that  18,19,35. 
office  who  shall  not  have  attained  to  the  age  of  thirty- 220-222. 
five  years,  and  been  fourteen  years  a  resident  within 
the  United  States. 

169.  "  A  NATURAL  BORN  CITIZEN." — Not  made  by  law  or  other-  Who  are 
wise,  but  born.     And  this  class  is  the  large  majority;  in  fact  the  eligible? 
mass  of  our  citizens ;  all  others  are  exceptions  specially  provided 
for   by  law.     As  they  become  citizens,  by  birth,  so  they  remain 
citizens  during  their  natural  lives,  unless,  by  their  own  voluntary        274. 
act,  they  expatriate  themselves  and  become  citizens  or  subjects  of 
another  nation.     For  we  have  no  law  (as  the  French   have)  to 
decitizenize  a  citizen  who  has  become  such  either  by  the  natural 
process   of   birth  or  the   legal  process  of  adoption.      Attorney- 
General  Bates  on  Citizenship,  29th  November,  1862,  p.  8. 

The  Constitution  does  not  make  the  citizens  (it  is,  in  fact,  made  Does  the 
by  them).     It  only  intends  and  recognizes  such   of  them  as  are  Jj 
natural,  home-born,  and  provides  for  the  naturalization  of  such  of  e 
them  as  are  alien,  foreign-born,  making  the  latter,  as  far  as  nature 
will   allow,  like   the   former.     Id.     "VVe  have  no   middle   class   or         93. 
denizens.     (1  Sharswood'a  Bl.  Com.  374.)     Id.  9.     But  Attorney- 
General  Legare  thought  there  might  be.    (4  Opin.  147.)     Id.     The 
example  of  a  Roman  citizen  and  St.  Paul's  case  and  claim  thereto 
cited.     Id.     Paul's  is  a  leading  case  of  the  "Jus  Romanum;"  it  is 
analagous  to  our  own  ;  it  establishes  the  great  pro/tctive  rights  of 
the  citizen,  but,  like  our  own  national  Constitution,  it  is  silent        279. 
about  his  powers.     Id.  1 2. 

'•NATURAL  BORN  CITIZEN"  recognizes  and  reaffirms  the  universal  Define 
principle  common  to  all  nations,  and  as  old  as  political  society,  that  natural 
the  people  born  in  a  country  do  constitute  the  nation,  and,  as  itidi-         220 
viduals,  are  natural  members  of  the  body  politic.     Bates  on  Citizen 
ship,  p.  12. 

Every  person  born  in  the  country  is,  at  the  moment  of  birth, 
prima  facie  a  citizen.  Id.  . 

Nativity  furnishes  the  rule,  both  of  duty  and  of  right,  as  between  ^ff^ 
the  individual  and  the  government.     ('2  Kent's  Com.  Part  4,  Lect.  imply? 


168 


PRESIDENT,    170. 


[Art.  II.,  Sec.  1, 


25;  1  Bl.  Com.  ch.  10,  p.  305;  7  Coke's  Rep.  and  (Calvin's  Case,  11 
State  Trialn,  70)  Doe  v.  Jones,  4  Term.  300  ;  Shanks  v.  Dupont,  3  Pet. 
246  ;  Horace  Binney,  2  Am.  Law  Reporter,  193.)  Bates  on  Citizen 
ship,  p.  12. 


Who  be- 
sides  nam- 


220. 


274 


85,  19. 


220. 


46. 


252-263. 


How  is  the 

Constitu- 

interpreted 


17O.  "OK  A  CITIZEN  OP  THE  UNITED  STATES  AT  THE  TIME  OF 
THE  ADOPTION  OF  THIS  CONSTITUTION."  —  The  declaration  of  inde- 
penderice  of  1776,  invested  all  those  persons  with  the  privilege 
of  citizenship  who  resided  in  the  country  at  the  time,  and  who 
adhered  to  the  interests  of  the  colonies.  (Ingliss  v.  The  Sailors' 
Snug  Harbor,  3  Pet.  99,  121.)  United  States  v.  Ritchie.  17  How. 
540  ;  Paschal's  Annotated  Digest,  note  350,  p.  209. 

There  can  be  few  of  the  class  of  the  foreign  born,  such  as  Alex 
ander  Hamilton,  who  are  now  surviving,  who  are  eligible  to  the 
presidency.  Considering  the  ages  of  all  such,  no  person  of  foreign 
birth  can  now  ever  be  President  of  the  United  States  under  this 
Constitution.  (See  Story's  Const.  §  1479  ;  Journals  of  Convention, 
2G7,  325,  361.)  Still,  in  this  case,  as  in  the  qualifications  of  sen- 
ators  and  representatives  in  Congress,  the  question  is  not  so 
clear  as  to  who  are  "natural  born  citizens  of  the  United  States." 
Are  the  ante-nati  of  the  Republic  of  Texas,  for  example,  "natural 
born  citizens  of  the  United  States?1'  They  were  born  upon  what 
is  now  soil  of  the  United  States  ;  but  they  were  not  "  citizens  at 
the  moment  of  their  births."  About  the  post  nati  there  can  be  no 
doubt  ;  but,  according  to  the  principles  of  Calvin's  case,  which  was 
so  learnedly  and  quaintly  discussed,  none  of  the  ante-nati  of  our 
acquired  territories  have  now  the  full  status  of  citizenship  ;  and 
certainly  they  are  no  other  than  adopted  or  naturalized  citizens,  in 
contradistinction  to  "natural  born  citizens."  See  Calvin's  Case,  11 
State  Trials,  70  et  seq. 

And  here,  again,  the  language  of  this  clause  has  to  be  con 
strued  in  connection  with  other  clauses  and  the  general  under- 
standing  of  mankind.  For  there  is  nothing  in  this  clause  to  indi 
cate  sex  unless  it  be  the  word  "  PRESIDENT."  Our  advocates  for 
equal  "  Woman's  Rigliis"  might  consider  this  a  very  narrow  defi 
nition  ;  and  they  might  even  urge  that  the  pronoun  "  he,"  in  other 
clauses,  does  not  protect  woman  from  the  severest  criminal  statutes  ; 
nor  would  it  deprive  woman  of  the  guaranties  accorded  to  "  him  " 
and  "  himself,"  standing  for  the  antecedent  of  "person"  in  the  Yth 
and  YIth  amendments. 

The  claims  of  males  to  be  alone  entitled  to  be  "  Senators  "  and 
"  Representatives"  is  believed  to  rest  alone  upon  the  masculinity  of 
?  ^)e  wor(lj  the  single  "  he"  and  the  common  sense  and  under- 
'  standing  of  men.  These  remarks  are  not  made  in  any  speculative 
or  hypercritical  spirit,  but  to  impress  upon  the  reader  the  necessity 
of  applying  the  same  common-sense  tests  to  this  Constitution  as  to 
all  other  instruments.  That  is,  not  to  construe  it  alone  by  the  very 
technicalities  of  the  words  in  a  single  member  of  a  sentence  ;  but 
to  apply  to  it  the  same  rules  of  interpretation  which  we  apply  to 
all  other  instruments,  laws,  and  statutes.  That  is  to  construe  it  by 
its  language,  nature,  reason,  and  spirit,  objects  and  intention,  and 
the  interpretations  of  contemporaneous  history,  having  an  eye  to 


Cl.  4,  5.]  PRESIDENT,    171,    172.  169 

the  old  law,  the  mischief  and  the  remedy.     See   Story's  Const, 
chapters  three,  four,  and  five,  and  voluminous  references. 

171.  ""WHO    SHALL    NOT  HAVE   ATTAINED   THE   AGE    OF    THIRTY  What  does 

YEARS." — This  is  a  limitation  upon  the  people  themselves.     If  all tlie  as0  fix  ? 
of  the  nation  speak  with  one  united  voice,  they  cannot  constitution 
ally  make  any  man  President  who  happens  to  be  under  thirty- 
five.     Bates  on  Citizenship,  p.  ]  8. 

"FOURTEEN  YEARS'  RESIDENCE." — By  "residence"  is  to  be  under 
stood,  not  an  absolute  inhabitancy  within  the  United  States  during 
the  whole  period;  but  such  an  inhabitancy  as  includes  a  per 
manent  domicile  in  the  United  States.  Story's  Const.  §  1479. 

[5.]  In  case  of  the  removal  of  the  President  from  if  there  bo  a 
office,  or  of  his  death,  resignation,  or  inability  to  dis-  theapre»i-n 
charge  the  powers  and  duties  of  the  said  office,  the  thSe^0 
same  shall  devolve  on   the  Vice-President,  and   theplSent? 
Congress  may  by  law  provide  for  the  case  of  removal,       86. 
death,  resignation,  or  inability,  both  of  the  President 
and  Vice-President,  declaring  what  officer  shall  then 
act  as  President,  and  such  officer  shall  act  accordingly 
until  the  disability  be  removed,  or  a  President  shall  be 
elected. 

172.  The  following  is  the  act  of  Congress  for  filling  vacancies  :  Act  of 

"  Sec.  8.  In  case  of  removal,  death,  resignation,  or  inability  both  *^cll  \. 
of  the  President  and  Vice-President  of  the  United  States,   the  239  ' 
President  of  the  Senate  pro  tempore,  arid  in  case  there  shall  be  no  38,'  26. 
President  of  the  Senate,  then  the  Speaker  of  the  House  of  Repre-  if  in  the 
sentatives,    for  the   time   being,    shall   act   as   President    of  the  Vice-Presi- 
United  States  until  the  disability  be  removed  or  a  President  shall  dency  ? 
be  elected. 

"  9.  Whenever  the  offices  of  the  President  and  Vice-President  When  shall 
shall  both  become  vacant,  the  Secretary  of  State  shall  forthwith  there  be  a 
cause  a  notification  thereof  to  be  made  to  the  executive  of  every 
State,  and  shall  also  cause  the  same  to  be  published  in  at  least  one 
of  the  newspapers  printed  in  each  State,  specifying  that  electors 
of  the  President  of  the  United  States  shall  be  appointed  or  chosen 
in  the  several  States  within  thirty-four  days  preceding  the  first 
Wednesday  in  December  then  next  ensuing :  Provided,  there  shall 
be  the  space  of  two  months  between  the  date  of  such  notification 
and  the  said  first  Wednesday  in  December ;  and  if  the  term  for 
which  the  President  and  Vice-President  last  in  office  were  elected, 
shall  not  expire  on  the  third  day  of  March  next  ensuing,  then  the 
Secretary  of  State  shall  specify  in  the  notification  that  the  electors 
shall  be  appointed  or  chosen  within  thirty-four  days  preceding  the 
first  Wednesday  in  December  in  the  year  next  ensuing ;  within 
which  time  the  electors  shall  accordingly  be  appointed  or  chosen, 
and  the  electors  shall  meet  and  give  their  votes  on  the  said  first 
8 


170  PRESIDENT,    172,    173,    174,  [Art.  II.,  Sec.  1,  2, 

"Wednesday  in  December,  and  the  proceedings  and  duties  of  the 
said  electors  and  others  shall  be  pursuant  to  the  directions  pre 
scribed  in  this  act."     Act  of  1  March,  1792,  §  8,  9.     1  Stat.  239. 
Suppose        Brightly's  Dig.  253,  254.      The  Constitution  does  not  provide  for 
election?0    a  vacancJ  m  case  °f  non-election.     Therefore,  the  constitutionality 
of  some  parts  of  this  act  has  been  doubted.    Story's  Const.  §  1480- 
1484 ;    Rawle's  Const,  ch.  5,  p.  57  ;   1  Tucker's  Black.  App.  320 ; 
2  Elliot's  Debates,  359,  360. 

What  Vice-       WILLIAM  HENRY  HARRISON  haying  died  on  the  4th  day  of  April, 

Presidents     1841>  JOHN  TYLER  took  the  oath  of  office  as  President,  on  the  6th 

comt  Presi-  da7  of  APril>  1841 5  ZACHARY  TAYLOR  died  on  the  9th  day  of  July, 

dents?          1850,  and  the  next  day  MILLARD  FILLMORE  took  the  presidential 

oath;  ABRAHAM  LINCOLN  was  assassinated  by  John  Wilkes  Booth, 

on  the  14th  day  of  April,  1865,  and,  on  the  15th,  ANDREW  JOHNSON 

was  inaugurated  President. 

What  of  the  [6.]  The  President  shall,  at  stated  times,  receive 
compcnaa-  for  his  services  a  compensation,  which  shall  neither  be 
increased  nor  diminished  during  the  period  for  which 
he  shall  have  been  elected,  and  he  shall  not  receive 
within  that  period  any  other  emolument  from  the 
United  States  or  any  of  them. 

What  is  the       173.  The  President's  salary  was  fixed  at  twenty-five  thousand 
amount?       dollars  per  annum,  by  the  act  of  18th  Feb.,  1793.     1  St.  318,  Bright 
ly's  Digest  818. 

The  government  provides  and  furnishes  a  mansion  for  his  use. 
For  the  wisdom  of  this  independence  in  regard  to  salary,  see  1 
Kent's  Com.  263  ;  Federalist,  No.  73  ;  Story's  Const  §  1486. 

[7.]  Before  he  enter  on  the  execution  of  his  office, 
he  shall  take  the  following  oath  or  affirmation : — 
What  is  the      "I  do  solemnly  swear  (or  affirm),  that  I  will  faith- 
oath?"1  S  fully  execute  the  office  of  President  of  the  United 
242«       States,  and  will,  to  the  best  of  my  ability,  preserve, 
protect,  and  defend  the  Constitution  of  the  United 
States." 

174.  The  President  is  the  only  officer  required  to  take  this 
oath.  Metropolitan  Bank  v.  Van  Dyck,  27  N.  Y.  Rep.  408. 

This  oath  embraces  all  the  laws,  Constitution,  treaties,  and  stat 
utes.  And  it  constitutes  the  President,  above  all  other  officers, 
the  guardian,  protector,  and  defender  of  the  Constitution.  Bates 
on  Habeas  Corpus,  5th  July,  1861.  See  Staubery  on  vacancies. 
The  acts  of  1795  and  1807,  came  in  aid  of  these  duties.  Id. 

What  docs  "FAITHFULLY    TO   EXECUTE    THE   OFFICE    OF    PRESIDENT." — This 

Steoato         embraces  the  general  office  of  the  executive,  and  also  the  official 
embrace  ?      powers  not  in  their  nature  executive,  such  as  the  veto  power ;  the 


01.  6,  T,  1.]  PRESIDENT,    175.  171 

treaty-making  power  ;    the  appointing  power,  and  the  pardoning        165. 
power.     Bates  on  Habeas  Corpus,  5th  July,  1861. 

SEC.  II.  —  [1.]  The  President  shall  be  commander-in-  what 
chief  of  the  army  and  navy  of  the  United  States,  and  President's 
of  the  militia  of  the  several  States,  when  called  i 


the   actual   service   of  the   United   States;    he  may       130. 
require  the  opinion,  in  writing,  of  the  principal  officer 
in  each  of  the  executive  departments,  upon  any  sub 
ject  relating  to  the  duties  of  their  respective  offices,       177. 
and  he  shall  have  power  to  grant  reprieves  and  par-  40,  191. 
dons  for  offenses  against  the  United  States,  except  in 
cases  of  impeachment.  194. 

175.  "  COMMANDER-IN-CHIEF."  —  This  was  to  give  the  exercise  Why  com- 
of  power  by  a  single  hand.     See  1  Kent's  Com.  Lect.  13,  p.  283  ;  3  mander? 
Elliot's  Debates,  103;  Story's  Const.  §  1491,  1492;  Rawle's  Const. 
ch.  20,  p.  193.     The  power  may  be   delegated.  Id.     5  Marshall's 
Life  of  Washington,  ch.  8,  pp.  583,  584,  588. 

The  President  is  not  obliged  to  take,  personally,  the  command  of  Must  he 
the  militia,  when  called  into  the  service  of  the  general  government,  c<jmman<l  in 
but  he  may  place  them  under  the  command  of  officers  of  the  army 
of  the  United  States,  to  whom,  in  his  absence,  he  may  delegate  the 
powers  vested  in  him  by  the  Constitution.  Any  officer  of  the  army 
may,  therefore,  be  required,  by  orders  emanating  from  the  Presi 
dent,  to  perform  the  appropriate  duties  of  his  station  in  the  militia, 
when  in  the  service  of  the  United  States,  whenever  the  public 
interest  shall  so  require.  But  this  power  must  be  exercised  in 
strict  accordance  with  the  right  of  appointment  of  militia  officers, 
which  is  expressly  reserved  to  the  States.  2  Opin.  711-12.  See 
2  Story's  Const.  §  1-490-2.  As  commander-in-chief,  the  President 
has  the  right  to  decide  what  officer  shall  perform  any  particular  165. 
duty,  and,  as  supreme  executive  magistrate,  he  has  the  power  of 
appointment.  Congress  could  not  take  away  this  power.  9  Op. 
468,  518.  But  this  power  is  to  be  used  only  in  the  manner  pre 
scribed  by  the  legislative  department.  9  Op.  518. 

The  President  has  unquestioned  power  to  establish  rules  for  the  What  rules 
government  of  the  army,  and  the  Secretary  of  War  is  his  regular  p^5^®t 
organ  to  administer  the  military  establishment  of  the  nation,  and  establish? 
rules  and  orders  promulgated  through  him  must  be  received  as 
the  acts  of  the  executive,  and,  as  such,  are  binding  on  all  within  129'  134« 
the  sphere  of  his  authority.     (United  States  v.  Eliason,   16  Pet. 
291.)    But  this  power  is  limited,  and  does  not  extend  to  the  repeal 
or  contradiction  of  existing  statutes,  nor  to  the  making  of  provi 
sions  of  a  legislative   nature.     (6  Opin.  10.)     Bates,   18th  April, 
1861. 

But  the  powers   of  the  President  over  the  militia,  only  com 
mence  when  those  of  the   governors  cease;    that  is,  when  the 


172  PRESIDENT— PARDONS,    176,    177.  [Art.  II.,  Sec.  2, 


What  of 
opinions  in 
writing  ? 


militia  are  called  into  the  actual  service  of  the  United  States.  Id. 
The  President  cannot  establish  a  bureau  of  militia.     Id. 

176.  "  OPINIONS  IN  WRITING." — This  practice  commenced  with 
the  administration  of  President  "Washington.  The  depository  of 
such  opinions  has  generally  been  in  the  State  department.  The 
attorney-general  frequently  gives  opinions  to  the  President,  as  the 
law  officer  of  the  government,  which  are  published  in  the  current 


"What  arc          The    "  DEPARTMENTS  "   are  now  called  the  State,  the  Treasury, 
the  Depart-  the  War,  the  Navy,  the  Post-office,  the  Attorney-General's,  and  the 
whoaVthe  Interior  departments.    The  heads  of  these  are  known  as  the  Pre.si- 
cabinet?       dent's  advisers  or  cabinet  officers.     Their  respective  duties  are  de 
fined  by  statutes,  which  will  be  found  collected  under  appropriate 
heads  in  Mr.  Brightly's  Digest. 

The  opinions  are  more  frequently  given  in  secret  cabinet  councils. 
But  Mr.  Jefferson  thought  the  separate  opinions  in  writing  more  con 
sistent  with  the  Constitution.  (4  Jeff.'s  Corresp.  143,  144.)  Story's 
Const.  §  1493,  note  3.  Upon  the  reconstruction  laws,  President 
Johnson  took  the  opinions  in  council;  and  he  seems  to  have 
authorized  their  publication. 


Define  re 
prieves  ? 


Define 
pardon  ? 


"When  may 
the  Presi 
dent 
pardon  ? 


177.  "  REPRIEVES." — The  withdrawing  of  a  sentence  of  death 
for  an  interval  of  time,  whereby  the  execution  is  suspended.  4  Bl. 
Com.  394;  Burrill's  Law  Die.,  REPRIEVE;  Ex  par  to  Wells,  18  How. 
307,  315  ;  Story's  Const.  3d  Ed.  p.  305,  §  1505.  The  power  is 
not  to  pardon,  but  to  grant  reprieves  and  pardons.  Ex  parti 
Wells.  18  How.  316. 

"AND  PARDONS." — In  common  parlance,  forgiveness,  release, 
remission.  Ex  parts,  Wells,  18  How.  307.  In  law  every  pardon  has 
its  particular  denomination.  They  are  general,  special  or  particular, 
conditional  or  absolute,  statutory,  not  necessary  in  some  cases,  and 
in  some  grantable  of  course.  Id. 

Here  it  is  meant,  that  the  power  is  to  be  used  according  to  law ; 
that  is,  as  it  had  been  used  in  England,  and  these  States  when 
they  were  colonies.  Id.  That  is,  according  to  the  principles 
of  the  English  common  law,  at  the  time  of  the  adoption  of  this 
Constitution.  (United  States  v.  Wilson,  7  Pet.  162.)  Ex  parte 
Wells,  18  How.  309.  Hence,  when  the  words  "to  grant  pardons" 
were  used  in  the  Constitution,  they  conveyed  to  the  mind  the 
authority  as  exercised  by  the  English  crown,  or  by  its  represen 
tatives  in  the  colonies.  Id. ;  Cathcart  v.  Robinson,  5  Pet.  264, 
280;  Flavel's  Case,  8  Watts  and  Sergeant,  197. 

A  pardon  is  said  by  Lord  Coke  to  be  a  work  of  mercy,  "  whereby 
the  king,  cither  before  attainder,  sentence,  or  conviction,  or  after, 
forgiveth  any  crime,  offense,  punishment,  execution,  right,  title, 
debt,  or  duty,  temporal  or  ecclesiastical."  (3  Inst.  233.)  Ex  parte 
Wells,  18  How.  311,  312.  The  whole  subject  discussed.  Id. 

He  may  paidon  as  well  before  trial  and  conviction  as  afterward. 
6  Opin.  20.  (See  the  proclamations  of  amnesty  in  relation  to  the 
rebellion.)  And  after  the  expiration  of  the  imprisonment  which 
forms  a  part  of  the  sentence.  Stetler's  Case,  Phila.  R.  302.  He 
may  grant  a  conditional  pardon  ;  Ex  parte  Wells,  18  How.  307;  1 


01.  l.]  PAKDONS,  177,  173 

Opin.  341 ;  provided  the  condition  be  compatible  with  the  genius 
of  our  Constitution  and  laws.     Id.  482.     Where  the  condition  is 
such  that  the  government  has  no  power  to  carry  it  into  effect,  the 
pardon  will  be  in  effect  unconditional.     5  Id.  368.     See  Flavell's 
Case,  8  W.  &  S.  197;  United  States  v.  Wilson,  7  Pet.  161 ;  People  In  what 
v.  Potter,  1  Parker  C.  R.  47.     The  pardoning  power  includes  thatcases? 
of  remitting  fines,  penalties,  and   forfeitures,  under   the   revenue 
laws;  2  Pet.  329;  the  laws  prohibiting  the  slave-trade  ;  4  Id.  573  ; 
fines  imposed  on  defaulting  jurors,  3   Id.  317;    4  Id.  458 ;    for  a 
contempt   of  court;    3  Id.  622;    and   in   criminal   cases;  Id.  418; 
even   treason,   amnesty    proclamations,   and  warrants.      And  the 
same  power  is  possessed  over  a  judgment,  after  security  for  its 
payment  shall  have  been  given,  as  before.     Id.     But  the  President 
has  no  power  to  remit  the  forfeiture  of  a  bail-bond.      4  Id.  144. 
Nor,  it  seems,  can  he,  by  a  pardon,  defeat  a  legal  interest  or  right 
which  has  become  vested  in  a  private  citizen  ;  as,  for  example,  the 
vested   right   of  an   officer  making  a  seizure.      United  States  v. 
Lancaster.  4  Wash.  C.  C.  64;    4  Opin.  376;    6  Id.  615;  and  see   5 
Id.  532,  579.     The  grant  of  the  pardoning  power  neither  requires 
nor  authorizes  the  President  to  re-examine  the  case  upon  new  facts; 
nor  to  grant  a  pardon  upon  the  assumption  of  the  new  facts  alleged. 
1  Opin.  359.     A  pardon  is  a  private  though  official  act;  it  must  be  Must  the 
delivered  to  and  accepted  by  the  criminal,  and  cannot  be  noticed  by  pardon  be 
the   court,  unless  brought  before  it  judicially  by  plea,  motion,  or  accep  ec 
otherwise.     United  States  v.  Wilson,  7  Pet.  150.     The  President 
alone  can  pardon  offenses  committed  in  a  territory  in  violation  of         231« 
acts  of  Congress      7  Opin.  761.     He  has   power  to  order  a  nolle        232- 
prosequi  in  any  stage  of  a  criminal  proceeding,  in  the  name  of  the 
United   States.     5  Id.  729.     He  pardoned  the  rebels  upon   their 
taking  the  oath  of  amnesty,  with  certain  exceptions,  by  general 
proclamation.     The  warrants  issued  to  those  within  special  excep 
tions  were  all  conditional. 

The  power  to  pardon  is  unlimited,  with  the  exceptions  stated,  what  is  the 
It  extends  to  every  offense  known  to  the  law,  and  maybe  exercised  extent  of  the 
at  anytime  after  its  commission,  either  before  legal  proceedings  I)OWCr? 
are  taken,  or  during  their  pendency,  or  after  conviction  and  judg 
ment.     This  power  of  the  President  is  not  subject  to  legislative 
control. 

Congress  can  neither  limit  the  effect  of  his  pardon,  nor  exclude  Can  Con- 
from  its  exercise  any  class  of  offenders.     The  benign  prerogative  of  ^ss  liluit 
mercy  cannot  be  fettered  by  any  legislative  restrictions.     Ex  parte *  e  1>ar< 
Garland,  4  Wall.  380. 

A  pardon  reaches  both  the  punishment  prescribed  for  the  offense  What  does 
and  the  guilt  of  the  offender ;  and  when  the  pardon  is  full,  it  re-  th«  pai-dou 
leases  the  punishment  and  blots  out  the  existence  of  the  guilt ;  so  reac   ' 
that  in  the  eye  of  the  law  the  offender  is  as  innocent  as  if  he  had 
never  committed  the  offense.     If  granted  before  conviction,  it  pre 
vents   any  of  the   disabilities   consequent   upon   conviction  from 
attaching ;  if  granted  after  conviction,  it  removes  the  penalties  and 
disabilities,  and  restores  him  to  all  his  civil  rights ;  it  makes  him, 
as  it  were,  a  new  man,  and  gives   him  a  new  credit  and  capacity. 
Ex  parte  Garland,  4  Wallace,  380,  381.     This  court  is  obliged  to 
conform  to  these  principles.  Judge  Duval,  in  the  case  of  the  United 


174          PRESIDENT'S  POWERS,  177,  178.    [Art.  IT.,  Sec.  2, 

States  v.  Devine,  Texas,  June  Term,  1867.  There  is  only  one 
limitation  to  its  operation ;  it  does  not  restore  offices  forfeited,  or 
property  or  interests  vested  in  others  in  consequence  of  the  convic 
tion  and  judgment.  (4  Blackstone's  Com.  402  ;  6  Bacon's  Abridg 
ment,  tit.  Pardon ;  Hawkins,  book  2,  ch.  37,  §  44  and  54.)  Ex 
parle  Garland,  4  Wallace.  381. 

What  is  the       The  pardon  produced  by  the  petitioner  is  a  full  pardon  "  for  all 

effect  of  tho  offenses,  from    participation,  direct  or  implied,  in   the  rebellion." 

the  rebels?    This  relieveti  him  from  all  penalties  and  disabilities  attached  to  the 

142, 143,  242,  offense  of  treason,  committed  by  his  participation  in  the  rebellion. 

2&i-  So  far  as  that  offense  is  concerned,  he  is  thus  placed  beyond  the 

reach  of  punishment  of  any  kind.     (Ex  parte  Garland,  4  Wallace, 

381.)    The  United  States  v.  Devine,  before  Judge  Duval,  in  the 

United  States  Circuit   Court  for  the  Western  District  of  Texas, 

242.         June  Term,  1867.     The  expurgatory   oath  required  by  attorneys 

27-1         cannot  affect  an  attorney,  who  had  been  previously   such  of  the 

court,  after  pardon.     Congress  cannot  inflict  punishment  beyond 

the  reach  of  executive  clemency.     Ex  parte  Garland,    4  Wallace, 

381. 

The  remission  of  a  penalty  after  it  has  been  paid  has  no  effect. 
Edwin  M.  Stanton,  Attorney-General,  3d  Jan.  1861. 

See  1  Kent's  Com.  11  Ed.  Part  II.  Lect.  13,  p.  283-285  and 
notes;  Story's  Const.  §  1494,  1504;  Federalist,  Xo.  74;  2  Wilson's 
Law  Lect.  198-200;  2  Elliot's  Debates,  366  ;  Rawle's  Const,  ch.  17, 
p.  178. 

What  is  the  [2.]  He  shall  have  power,  by  and  with  the  advice 
and  consent  of  the  Senate,  to  make  treaties,  provided 
nd  two-thirds  of  the  Senators  present  concur;  and  he 
snaM  nominate,  and  by  and  with  the  advice  and  con- 

179.  sent  of  the  Senate,  shall  appoint  ambassadors,  other 
public  ministers  and  consuls,  judges  of  the  Supreme 
Court,  and  all  other  officers  of  the  United  States, 
whose  appointments  are  not  herein  otherwise  pro 
vided  for,  and  which  shall  be  established  by  law. 
But  the  Congress  may  by  law  vest  the  appointment 
of  such  inferior  officers,  as  they  think  proper,  in  the 

188.  President  alone,  in  the  courts  of  law,  or  in  the  heads 
of  departments. 

178.  "  HE  SHALL  HAVE  POWER,  BY  AND  WITH  THE  ADVICE 
AND  CONSENT  OF  THE  SENATE,  TO  MAKE  TREATIES,  PROVIDED 
TWO-THIRDS  OP  THE  SENATORS  PRESENT  CONCUR." 

How  is  the        This  "  advice  and  consent "  is  usually  given  after  the  treaty,  or 
advice  appointment   is  made  and  signed  by  the  President.     The  work  ia 

then  sent  to  the  Senate,  to  ask  the  "  CONCURRENCE  of  two-thirds." 
But  it  is  in  the  option  of  the  President  to  ask  the  advice  and  coo- 


Cl.  2.]  PRESIDENT'S  POWERS,  178,  179.  175 

gent  of  the  Senate  'in  advance,  and  it  was  so  asked  by  President 
Polk  upon  the  ratification  of  the  Treaty  with  Great  Britain,  in 
1846,  relative  to  Oregon.  See  5  Marshall's  Life  of  Washington, 
ch.  2,  p.  223;  Executive  Journal,  llth  Aug.  1790,  pp.  GO,  61; 
Rawle's  Const,  ch.  7.  pp.  63,  64;  Story's  Const.  §  1523  ;  see  Senate 
Journal  and  Debates  of  July.  1846,  upon  the  Oregon  Treaty. 

'•MAKE  TREATIES."  —  [/'«*&«.]     An  agreement  between  two  or  What  Is  a 
more  independent  States.    Brande.     An  agreement,  league,  or  con-  treaty  t 
tract  between  two  or  more  nations  or  sovereigns,  formally  signed 
by  commissioners  properly  authorized,  and  solemnly  ratified  by  the 
several  sovereigns,  or  the  supreme  power  of  each  State.  Webster's 
Die.,  TREATY  ;  Burrill's  Die.,  TKEATY.    See  Halleck's  International 
Law,  ch.  34,  pp.  189,  844. 

A  treaty  is,  in  its  nature,  a  contract  between  two  nations  ;  not  a  199. 
legislative  act.  It  does  not  generally  e  fleet,  of  itself,  the  object  to 
be  accomplished,  especially  so  far  as  its  operation  infra-territorial, 
but  is  carried  into  execution  by  the  sovereign  power  of  the  respect 
ive  parties  to  the  instrument.  Foster  &  Elam  v.  Neilson,  2  Peters, 
314. 

In  the  United  States  a  different  principle  is  established.     Our 
Constitution  declares  a  treaty  to  be  the  law  of  the  land.     It  is,  con 
sequently.  to  be  regarded  in  courts  of  justice  as  equivalent  to  an 
act  of  the  legislature,  wherever  it  operates  of  itself  without  the  aid 
of  any  legislative  provision.     But  when  the  terms  of  the  stipula 
tion  import  a  contract,  when  either  of  the  parties  engages  to  per-        199. 
form  a  particular  act,  the  treaty  addresses  itself  to  the  political,        ^ 
not  the  judicial  department  ;  and  the  legislature  must  execute  the 
contract  before  it  can  become  a  rule  for  the  court.     Id. 

Tho  power  extends  to  every  kind  of  treaty.  Story's  Const.  §  1  508. 
But  the  power  cannot  be  exercised  to  override  other  parts  of  the 
Constitution,  and  to  destroy  the  fundamental  principles  of  the  gov 
ernment.  Id.;  Woodeson's  Elcra.  of  Jurisprudence,  31;  4  Jeff's 
Corresp.  2,  3,  498;  Rawle's  Con  t.  G3-75.  See  the  power  discussed. 
Story's  Const.  §  1508,  1523;  Ware  v.  Hylton,  3  Call.  272-27G. 

179.  fi  HE  SHALL  NOMINATE."  —  The  word  as  here  used  means  Define 


to  recommend,  in  writing  to  the  Senate,  the  name  of  an  appointee 
for  confirmation.  It  is  in  this  form  the  "advice  of  the  Senate"  is 
asked.  This  is  the  sole  act  of  the  President,  and  is  voluntary. 
Marbury  v.  Madison,  1  Cr.  137;  1  Peter's  Cond.  270;  Story's 
Const.  §  1548. 

But  the  practice,  when  the  Senate  is  not  in  session  {and  I  think 
sometimes  when  it  is),  is,  that  the  President  fills  vacancies,  and 
the  appointee  qualifies  and  enters  upon  the  duties  of  his  office.  In 
such  cases,  the  NOMINATION  is  not  confined  to  the  PROVISIONAL 
appointee;  but  the  President  may  and  often  does  appoint  another. 
See  Stanbery  on  appointments  to  office.  14—19. 

11  AND  BY  AND    \VJTH  THE    ADVICE    AND  CONSENT  OF   THK   SENATE  Appoint? 

SHALL  APPOINT."  —  It  will  be  observed  that,  as  in  the  nomination, 
the  duty  is  imperative  —  ''  s]i  all  M  mi-nab:  "  "xitall  aj>point.n 

This  power  to  fill  vacancies  is  in  the  President,  with  the  a.-sent 
of  the  Senate,  whilst  that  body  is  in  session,  and  in  the  President 
alone  when  the  Senate  is  not  in  session.  There  ia  no  reason  upon 


176  APPOINTMENTS,    179.  [Art.  II.,  Sec.  2, 

which  the  power  to  fill  a  vacancy  can  be  limited  by  the  state  of 
things  when  it  first  occurred.  On  the  contrary,  the  only  inquiry 
is  as  to  the  state  of  things  when  it  is  filled. 

What  is  the      All  admit  that  whenever  there  is  a  vacancy  existing  during  the 
eftVct  of  an  session,  whether  it  first  occurred  in  the  recess  or  after  the  session 
durin^the    beoan?  tne  power  to  fill  requires  the  concurrent  action  of  the  Prcsi- 
recess?         dent  and  Senate.      It  seems  a  necessary  corollary  to  this,  that 
189.        where  the  vacancy  exists  in  the  recess,  whether  it  first  occurred 
in  the  recess  or  in  the  preceding  session,  the  power  to  fill  is  in  the 
President  alone.     If.  during  the  recess,  the  power  is  not  in  the 
President,  it  is  nowhere,  and  there  is  a  time  when  for  a  season 
the  President  is  required  to  see  that  the  laws  are  executed,  and 
yet  denied  every  means  provided  for  their  execution.     Stanbery. 
What  is  the      Nevertheless,  it  comes  back  to  the  point  that  the  President  can 
effect  of  the  oniv  «  appoint,"  with  the  concurrence  of  the  Senate  ;  and  all  the 
"      appointments  whether  during  the  recess,  or  the  session  of  the 
Senate  are  provisional  only,  arid  subject  to  the  concurrence,  in 
common  parlance,  "  ratification,''  of  that  body. 
What  Hence  his  power  at  all  times  to  vacate  offices  and  to  fill  vacan- 

I'h  ^p™  C-an  cies-  He  can'  by  his  own  act»  do  evei7  thing  but  give  full  title  to 
dent  confer?  kis  appointees,  and  invest  them  with  the  right  to  hold  during  the 
'  official  term.  That  he  cannot  do  without  the  consent  of  the  Senate  ; 
but  such  is  his  power  over  officers,  that,  after  the  Senate  has  con 
sented  to  his  nomination,  or  in  common  parlance,  has  confirmed  it, 
the  nominee  is  not  yet  fully  appointed,  or  even  entitled  to  the  office, 
for  it  still  remains  with  the  President  to  give  him  a  commission  or 
to  refuse  it,  as  he  may  deem  best ;  and  without  the  commission 
there  is  no  appointment.  This  was  held  by  the  Supreme  Court  in 
Marbury  v.  Madison,  1  Cr.  137,  155,  156;  and  when  to  th-at  deci 
sion  we  add  the  doctrine  recognized  by  the  same  court  in  Ex  parte 
Hennen,  (13  Pet.  213),  we  see  how  fully  the  appointment  and 
removal  of  officers  is  held  to  be  a  necessary  incident  of  executive 
power.  Stanbery,  18,  19. 

The  nomination  and  appointment  are  voluntary  acts,  and  distinct 
from  the  commissioning.     Marbury  v.  Madison,  I  Cr.  1'55-G.    P]ven 
after  confirmation,  the  President  may,  in  his  discretion,  withhold 
a  commission;  and,  until  a  commission  has  been  signed,  the  appoint 
ment  is  not  fully  consummated.     (4  Opin.  218).     Stanbery. 
What  is  the       When  the  Senate  has  concurred  and  the  "commission  "  is  signed 
effect  of  the  by  the  President,  even  before  delivery,  the  appointment  is  com- 
Bion""18"       plete,  and  the  officer  has  vested  legal  rights  which  cannot  be 
1&4.        resumed.     Marbury  v.   Madison,   1   Cr.   156;  United  States  v.  Le 
Baron,  19  How.  74;  Story's  Const.  §  1548-1554.     Mr.  Jefferson 
refused  to  act  upon  this  decision,  and  claimed  the  power  to  with 
hold  the  commission.     4  Jeff.  Corr.  75,  317,  372;  Rawle  on  the 
Const.  166 ;  Story's  Const.  §  1553,  note  1. 

To  "appoint,"  and  to  "commission,"  are  not  one  and  the  same 
thing.  Marbury  v.  Madison,  1  Cr.  155.  The  commission  is  not 
necessarily  the  appointment,  although  conclusive  evidence  of  the 
fact.  Id. ;  United  States  v.  Le  Baron,  19  How.  74. 

When  the  appointee  refuses  to  accept,  the  successor  is  nominated 
in  his  place,  and  not  iu  the  place  of  the  person  who  had  been  pre- 


01.  2.]  APPOINTMENTS,      180-188.  177 

viously  in  the  office  and  had  created  a  vacancy.  (Marbury  v. 
Madison.  1  Cr.  137-156.)  Story's  Const.  §  1554.  See  also  John 
son  v.  United  States,  5  Mason,  425,  438,  439;  United  States  r. 
Kirkpatrick,  4  Wheat.  733,  734;  Bowerbank  v.  Morris,  Wallace 
Cir.  R.  425,  438,  439;  Thompson's  Case,  3  P.  Will.  194;  Boucher 
v.  Wiseman.  Cro.  Eliz.  440  ;  Burch  v.  Maypowder,  1  Vt.  400. 

ISO.  "  AMBASSADORS,  OTHER  PUBLIC  MINISTERS,  AND  CONSULS."  What  is  an 
—  "AMBASSADORS,"  comprehend  the  highest  grade  only  of  public  Ambussa- 
ministers.     Story's  Const.  §  1525.     See  Grotius,  Yattel,   Martens, 
Wicquefort,    Halleck  (ch.    9,    pp.    200-239)   and  Wheaton,    Title,         202. 
AMBASSADORS.     For  a  better  definition,  see  note  202. 

Ambassadors  could  not  include  consuls,  hence  the  enlargement 
of  the  enumeration.  Story's  Const.  §  1525;  Federalist,  No.  42. 

See  ante,  p.  14,  Art.  IX. 

181.  "PUBLIC  MINISTERS  AND  CONSULS."  —  CONSULS.  —  For  the        189. 
derivation  of  the  word  consul  (consulere,   consulatus,  comes,  comi-  Define  con-  . 
tatu-s),  see   Co.  Litt.  lib.  3,  note  20;   Burrill's  Law  Die.,  CONSUL.  suls? 
The  name  of  a  chief  magistrate  among  the  Romans,  and  of  Earls, 
from  consulcndo,  among  the  Britons.     Bract,  fol.  5,  b.     ;   1  Bl.  Com. 
227.     For  the  origin,  history,  and  duty  of  consuls,  see   Halleck's 
International  Law,  ch.  15,  239-209,  and  the  many  learned  authori 
ties  there  cited. 

In  commercial  and  international  law,  a  public  agent,  appointed 
by  a  government  to  reside  in  a  foreign  country  (and  usually  in 
seaports),  to  watch  over  its  own  commercial  rights  and  privileges, 
and  the  commercial  interests  of  its  citizens  or  subjects.  1  Kent's 
Com.  41. 


JUDGES    OP   THE    SUPREME    COURT,    AND   ALL  OTHER  what  offl- 
OFFICERS    OF    THE   UNITED   STATES,  WHOSE   APPOINTMENTS    ARE  ^sj?""si 

NOT    HEREIN  '  OTHERWISE    PROVIDED    TOR,    AND    WHICH     SHALL    BE  d^t  IC 
ESTABLISHED    BY    LAW."  appoint? 

Judges  of  the  Supreme  Court  are  defined  in  the  Constitution.        1<y- 
(Art.  III.  sec.  1.) 

The  effect  of  this  and  other  clauses  of  the  Constitution,  on  the 
subject  of  the  appointments  to  office,  is  to  declare  that  all  offices 
under  the  federal  government,  except  in  cases  where  the  Constitu 
tion  itself  may  otherwise  provide,  shall  be  established  by  law. 
United  States  v.  Maurice,  2  Brock.  96. 

Every  thing  concerning  the  administration  of  justice,  or  the 
general  interests  of  society  may  bo  supposed  to  be  within  the 
meaning  of  the  Constitution,  especially  if  fees  and  emoluments  are 
annexed  to  the  office.  But  there  are  matters  of  temporary  and 
local  concern,  which,  although  comprehended  in  the  term  officers, 
have  not  been  thought  to  be  embraced  by  the  Constitution. 
(Lehman  v.  Sutherland,  3  Serg.  Rawle,  149.)  Attorney-Gen 
eral  Stanbery's  Opinion  on  the  Reconstruction  Laws,  24th  May, 

1867,  p.  12. 

Where  else 

183.  "BUT  THE  CONGRESS  MAY  VEST  BY  LAW  THE  APPOINT-  may  .th« 

MENT,    ETC.,    OF    INFERIOR    OFFICERS   IN    THE    PRESIDENT    ALONE,    IN  pow^bo" 

THE  COURTS  OF  LAW,  OR  IN  THE  HEADS  OF  DEPARTMENTS."  —  Here  vested? 
8* 


178  BEMOVAL,   184.  [Art.  II.,  Sec.  2, 

179-132.         the  duty  of  commissioning  is  distinct  from  tho  appointment.     The 

legislature   might   require   commissions.      Marbury  v.  Madison,  1 

Cr.  157;  Story's  Const.  §  1548. 

Officers  Clerks  of  courts  are  such  officers ;  and,  in  such  cases,  the  power 

cptnmis-       of  removal  is  incident  to  tho  power  of  appointment.     Ex  parte 

Hennen,  13  Pet.  230,  259.     And  may  be  exercised  by  the  court 

which  appointed.     Id. 

The  President  cannot  appoint  a  commissioner  of  bail,  affidavits, 

&c.     That  power  belongs  to  the  circuit  courts.     Bates,  24th  June, 

1861. 

Tenure  of         184.  THE  POWER  OF  REMOVAL.     The  power  of  the  President 

office  ?          to  appoint  to  office,  necessarily  includes  the  power  to  remove  all 

Cnn  the         officers  appointed  and  commissioned  by  him,  where  the  Constitution 

remove'as     ^as  no*  ot^ierw'se  provided.    Therefore  he  may  remove  a  territorial 

well  as  '       judge,  in  his  discretion.     5  Opin.  288  ;  3  Id.  673  ;  4  Id.  603,  608-9 ; 

appoint?       4  Elliot's    Debates,  350;  Ex  parte  Henuen,  13  Pet.  259.     And  he 

179, 180.        may  cause  a  military  officer  to  be  stricken  from  the  rolls,  without  a 

trial  by  court-martial,  notwithstanding  a  decision  in  his  favor  by  a 

court  of  inquiry.     4  Opin.  1. ;   2   Story's  Const.  §  1538;  Stanbery, 

17-19.  But  see  act  of  13th  July,  1866,  in  this  note;  Story's  Const. 

§  1549-1554. 

To  what  is  The  Senate  cannot  originate  an  appointment ;  its  constitutional 
the  Senate's  actjon  is  confined  to  a  simple  affirmation  or  rejection  of  the  Presi- 
action  con-  ,  ,  •  ,.-  j  t.  *.•  c  -\  ^  -^  j- 

fined.  dents  nominations;  and   such  nominations  fail  whenever  it  dis- 

193,  i94.        agrees  to  them.     3  Opin.  188  ;  Stanbery,  18. 

This  clause  gives  him  power  to  appoint  diplomatic  agents  of  any 
rank,  at  any  place,  and  at  any  time,  in  his  discretion,  subject  to  the 
approbation  of  the  Senate  ;  and  this  power  cannot  be  limited  by  act 
of  Congress.  7  Opin.  186. 

185.  Nothing  is  said  about  the  power  of  removal  by  the  executive  of 

any  officers  whomsoever.     As,  however,  the  tenure  of  office  of  no 

officers  except  those  in  the  judicial  department,  is,  by  the  Constitu- 

Art  III.,       tion,  provided  to  be  during  good  behavior,  it  follows,  by  irresistible 

Sec.  1.  inference,  that  all  others  must  hold  their  offices  during  pleasure, 

unless  Congress  shall  have   given   some  other  duration  to  their 

office.     (1    Lloyd's  Debates,   511,    512.)     Story's  Const.   §    1537: 

Keen  an  v.  Perry,  24  Tex.  258.     In  the  absence  of  a  constitutional 

or  statutory  provision,  the  power  of  removal  would  seem  to  be  in- 

184.        cident  to  the  power  of  appointment.    (Ex parte  Hennen,  13  Pet.  259.) 

Keenau  v.  Perry,  24  Tex.  258. 

As  far  as  Congress  constitutionally  possesses  the  power  to 
regulate  and  delegate  the  appointment  of  "inferior  officers," 
so  far  they  may  prescribe  the  term  of  office,  the  manner  in  which, 
and  the  persons  by  whom,  the  removal,  as  well  as  the  appointment 
to  office,  shall  be  made.  (Marbury  v.  Madison,  1  Cranch,  137,  155.) 
Story's  Const.  §  1537.  See  Monroe's  Message  of  12th  April,  1822, 
1  Executive  Journal,  286;  Sergt's  Const,,  ch.  29  [31];  5  Mar 
shall's  Life  of  Washington,  ch.  3,  p.  196-200  ;  1  Lloyd's  Debates, 
351-366.  and  450-600:  Id.  1-12. 

The  removal  takes  place  in  virtue  of  tho  new  appointment,  by 
mere  operation  of  law.  EJC  parts  Hennen.  13  Pet.  300;  Federalist, 
No.  77. 


01.  2.]  TENURE   OF  OFFICE,    184.  179 

"  The  consent  of  the  Senate  would  he  necessary  to  displace  as 
well  as  to  appoint."  (Federalist.  No.  77.)  Story's  Const.  §  1540. 

While  Mr.  Madison  claimed  the  power  to  remove,  he  said,   "  the 
•wanton  removal  of  meritorious  officers  would   subject   him  (the  191-194 
President)  to  impeachment."     (1  Lloyd's  Debates,  503  ;  and  see 
Id.    351,  366,  450,  480-600;  4  Elliot's  Debates,  141-207. 

The  first  limitation  on  the  President's  power  of  removal  is  as  How  are  the 
follows :   "  And  no  officer  in  the  military  or  naval  service  shall,  in  military  re 
time  of  peace,  be  dismissed  from  service  except  upon,  and  in  pur- mo 
suance  of,  the  sentence  of  a  court-martial  to  that  effect,  or  in  com 
mutation  thereof."     Act  of  13th  July,  1866,  14  St.  p.  92,  §  5. 

In  the  differences  between  the  President  and  Congress,  the 
question  was  again  discussed  by  the  thirty-ninth  Congress;  and 
although  not  very  elaborately  argued,  the  positions  taken  for  and 
against  the  power  were  urged,  and  will  be  found  in  the  Congres 
sional  Globe  of  that  session,  and  in  the  President's  veto  of  the 
following  law: — 

An  Act  regulating  the  Tenure  of  certain  Civil  Offices.  Act  of 

"SEC.  1.  Every  person  holding  any  civil  office  to  which  he  has  igffiTudt 
been  appointed  by  and  with  the  advice  and  consent  of  the  Senate,  430. 
and  every  person  who  shall  hereafter  be  appointed  to  any  such i  what  is 
office,  and  shall  become  duly  qualified  to  act  therein,  is,  and  shall  be  tenure  of 
entitled  to  hold  such  office  until  a  successor  shall  have  been  in  like  °^il 
manner  appointed  and  duly  qualified,  except  as  herein  otherwise        , 
provided:   Provided,  That  the  Secretaries  of  State,  of  the  Treasury,  exceptions? 
of  War,  of  the  Navy,  aud  of  the  Interior,  the  Postmaster-General, 
and  the  Attorney-General,  shall  hold  their  offices  respectively  for 
and   during  the  term  of  the   President,  by  whom  they  may  have 
been  appointed,  and  for  one  month  thereafter,  subject  to  removal 
by  and  with  the  advice  and  consent  of  the  Senate. 

"2.  When  any  officer  appointed  as  aforesaid,  excepting  judges  When  may 
of  the  United  States  Courts,  shall,  during  a  recess  of  the  Senate,  be  the  Pres>- 
shown,  by  evidence  satisfactory  to  the   President,  to  be  guilty  of  p^"^  ^wi 
misconduct  in  office,  or  crime,  or  for  any  reason  shall  become  in-  temporarily 
capable  or  legally  disqualified  to  perform  its  duties,  in  such  case,  appoint? 
and  in  no  other,   the  President    may  suspend  such   officer   and 
designate  some  suitable  person  to  perform  temporarily  the   duties 
of  such  office  until  the  next  meeting  of  the  Senate,  and  until  the 
case  shall  be  acted  upon  by  the  Senate,  and  such  person  so  desig 
nated  shall  take  the  oaths  and  give  the  bonds  required  by  law  to 
be  taken  and  given  by  the  person  duly  appointed  to  fill  such  office  ; 
and  in  such  case  it  shall  be  the  duty  of  the  President,  within 
twenty  days  after  the  first  day  of  such  next  meeting  of  the  Senate,  To  whom  to 
to  report  to  the  Senate  such  suspension,  with  the  evidence  and  r«port  ? 
reasons  for  his  action  in  the  case,  and  the  name  of  the  person  so 
designated   to   perform   the  duties   of  such   office.     And  if  tho 
Senate  shall  concur  in  such  suspension,  and  adviso  and  consent  to 
the  removal  of  such  officer,  they  shall  so  certify  to  the  President, 
who  may  thereupon  remove  such  officer,  and,  by  and  with  the  ad 
vice  and  consent  of  the  Senate,  appoint  another  person  to  such*ftoe 
office.    But  if  the  Senate  shall  refuse  to  concur  in  such  suspension,  refuLfto 
such  officer  so  suspended  shall  forthwith  resume  the  functions  of  concur? 


180 


TENUEE  OF   OFFICE,    184. 


[Art,  II.,  Sec.  2, 


M.iy  the 
President 
revoke  the 
removal  ? 


Iftho 
Senate  re 
fuse  to 
concur  in 
vacancies  ? 


his  office,  and  the  powers  of  the  person  so  performing  its  duties  in 
his  stead  shall  cease,  and  the  official  salary  and  emoluments  of  such 
officer  shall,  during  such  suspension,  belong  to  the  person  so  per 
forming  the  duties  thereof,  and  not  to  the  officer  so  suspended: 
Provided,  howrvcr,  That  the  President,  in  case  he  shall  become 
satislied  that  such  suspension  was  made  on  insufficient  grounds, 
shall  be  authorized,  at  any  time  before  reporting  such  suspension 
to  the  Senate  as  above  provided,  to  revoke  such  suspension  and 
reinstate  such  officer  in  the  performance  of  the  duties  of  his 
office. 

"3.  The  President  shall  have  power  to  fill  all  vacancies  which 
may  happen  during  the  recess  of  the  Senate,  by  reason  of  death  or 
resignation,  by  granting  commissions  which  shall  expire  at  the  end 
of  their  next  session  thereafter.  And  if  no  appointment,  by  and 
with  the  advice  and  consent  of  the  Senate,  shall  be  made  to  such 
office  so  vacant  or  temporarily  filled  as  aforesaid  during  such  next 
session  of  the  Senate,  such  office  shall  remain  in  abeyance,  without 
any  salary,  fees,  or  emoluments  attached  thereto,  until  the  same 
Bhall  be  filled  by  appointment  thereto,  by  and  with  the  advice  and 
consent  of  the  Senate ;  and  during  such  time  all  the  powers  and 
duties  belonging  to  such  office  shall  be  exercised  by  such  other 
officer  as  may  by  law  exercise  such  powers  and  duties  in  case  of  a 
vacancy  in  such  office. 

"4.  Nothing  in  this  act  contained  shall  be  construed  to  extend 
the  term  of  any  office  the  duration  of  which  is  limited  by  law. 

"  5.  If  any  person  shall,  contrary  to  the  provisions  of  this  act, 
-    accept  any  appointment  to,  or  employment  in,  any  office,  or  shall 
exercising0*1  nol(1  or  exercise,  or  attempt  to  hold  or  exercise,  any  such  office  or 
office  con"     employment,  he  shall  be  deemed,  and  is  hereby  declared  to  be, 
trary  to  this  guilty  of  a  high  misdemeanor,  and,  upon  trial  and  conviction  thereof, 
he  shall  be  punished  therefor  by  a  fine  not  exceeding  ten  thousand 
dollars,  or  by  imprisonment  not  exceeding  five  years,  or  both  said 
punishments,  in  the  discretion  of  the  court. 

"  6.  Every  removal,  appointment,  or  employment,  made,  had,  or 
exercised,  contrary  to  the  provisions  of  this  act,  and  the  making,  sigri- 
iQ&>  sealing,  countersigning,  or  issuing  of  any  commission  or  letter  of 
authority  for  or  in  respect  to  any  such  appointment  or  employment, 
shall  bo  deemed,  and  an*  hereby  declared  to  be,  high  misdemeanors, 
and,  upon  trial  and  conviction  thereof,  every  person  guilty  thereof 
phall  be  punished  by  a  fine  not  exceeding  ten  thousand  dollars,  or 
When  may  by  imprisonment  not  exceeding  five  years,  or  both  said  punish 
ments,  in  the  discretion  of  the  court:  Provided,  That  the  President 
shall  have  power  to  make  out  and  deliver,  after  the  adjournment 
of  the  Senate,  commissions  for  all  officers  whose  appointment  shall 
have  been  advised  and  consented  to  by  the  Senate. 

"  7.  It  shall  bo  tho  duty  of  the  secretary  of  the  Senate,  at  the 
rejections  to  cioso  of  oach  session  thereof,  to  deliver  to  the  Secretary  of  the 
Treasury,  and  to  each  of  his  assistants,  and  to  each  of  the  auditors, 
and  to  each  of  the  comptrollers  in  tho  treasury,  and  to  the  trea 
surer,  and  to  the  register  of  tho  treasury,  a  full  and  complete  list, 
duly  certified,  of  all  the  persons  who  shall  have  been  nominated  to 
and  rejected  by  the  Senate  during  such  session,  and  a  liko  list  of 


What  limit 
on  term  ? 

What 
penalty  for 


And  for 


trary  to  the 
act? 


the  Presi 
dent  com 
mission? 


How  are 


Cl.  2.]  TEXUEE   OF   OFFICE,    184.  181 

oil  the  offices  to  which  nominations  shall  have  been  made  and  not 
confirmed  and  filled  at  such  session. 

"  8.  Whenever  the  President  shall,  without  the  advice  and  con-  What  is  the 
Bent  of  the  Senate,  designate,  authorize,  or  employ  any  person 
perform   the   duties  of  any  office,  he   shall  forthwith  notify  t 
Secretary  of  the  Treasury  thereof;  and  it  shall  be  the  duty  of  the 
Secretary  of  the  Treasury  thereupon  to  communicate  such  notice 
to  all  the  proper  accounting  and  disbursing  officers  of  his  depart 
ment. 

"9.  No  money  shall  be  paid  or  received  from  the  treasury,  or  What  re 
paid  or  received  from  or  retained  out  of  any  public  moneys  or  funds  strictions  as 
of  the  United  States,  whether  in  the  treasury  or  not,  to  or  by  or  °  pay 
for  the  benefit  of  any  person  appointed  to  or  authorized  to  act  in  or 
holding  or  exercising  the  duties  or  functions  of  any  office  contrary 
to    the   provisions    of    this   act;    nor   shall   any   claim,    account, 
voucher,  order,  certificate,  warrant,  or  other  instrument,  providing 
for  or  relating  to  such  payment,  receipt,  or  retention,  be  presented, 
passed,  allowed,  approved,  certified,  or  paid  by  any  officer  of  the 
United  States,  or  by  any  person  exercising  the  functions  or  per 
forming  the  duties  of  any  office  or  place  of  trust  under  the  United 
States,  for  or  in  respect  to  such  office,  or  the  exercising  or  perform 
ing  the  functions  or  duties  thereof;  and  every  person  who  shall 
violate  any  of  the  provisions  of  this  section  shall  be  deemed  guilty  Whnt 
of  a  high  misdemeanor,  and.  upon  trial  or  conviction  thereof,  shall  pyi:ilty  <"<»" 
be  punished  therefor  by  a  fine  not  exceeding  ten  thousand  dollars,  vi' 
or  by  imprisonment  not  exceeding  ten  years,  or  both   said  punish 
ments,  in  the  discretion  of  the  court."     Passed  over  the  President's 
veto,  2  March,  1867. 


departments 
2  Id. 

were  not.  (Rawle's  Const,  ch.  14,  pp.  163,  164;  Sergeant  on  the 
Const,  ch.  29  [ch.  31];  see  President  Monroe's  Message  of  12th 
April,  1822.)  Story's  Const.  §  1536-1539.  The  President  was 
overruled  by  the  Senate,  which  contended  that,  as  Congress  pos 
sessed  the  power  to  make  rules  and  regulations  for  the  land  and 
naval  forces,  they  had  a  right  to  make  any  which  would  promote 
the  public  service;  that  Congress  fixes  the  promotions,  and  every 
promotion  is  a  new  appointment,  which  requires  ratification. 
(Sergeant's  Const,  ch.  29)  [ch.  31.] 

The  power  to  nominate  does  not  naturally  or  necessarily  include 
the  power  to  remove;  and  if  the  power  to  appoint  does  include  it,  170. 
then  the  latter  belongs  conjointly  to  the  executive  and  Senate. 
Story's  Const.  §  1538.  It  results,  and  is  not  separable  from  the 
appointment  itself.  (Ex,  parte  Hennen,  13  Pet.  213.)  Story's  Const. 
§1538;  Federalist,  No.  77. 

The  power  to  remove  by  the  President  was  affirmed  during  the 
administration  of  President  Washington  by  the  casting  vote  of  the 
Vice-Presideut.  Senate  Journal,  July  18,  1789,  p.  42.  The 
question  was  much  agitated  again  during  the  administration  of 
President  Jackson.  Finally  the  power  has  been  denied,  in  tho 
shape  of  the  tenure  of  office  bill,  during  the  administration  of 


182  VACANCIES,    185.  [Art.  II.,  Sec.  2, 

President  Johnson,  because  of  the  peculiar  attitudes  of  a  Pres 
ident  and  a  Congress  elected  at  the  same  time,  and  upon  the 
Bame  platform  of  principles.  Without  pretending  to  assert  posi 
tively  the  constitutionality  of  the  law,  the  editor  ventures  to  pre 
dict,  that  no  political  party  will  ever  entirely  remove  the  restrictions, 
and  loa?e  the  tenure  of  office  wholly  and  exclusively  at  the  will  of 
the  President.  The  real  evil  results  from  the  too  great  patronage 
in  the  hands  of  the  executive,  and  the  corrupting  influences, 
for  a  long  time  so  openly  employed,  by  the  distribution  of 
federal  patronage  to  control  State  elections.  The  evil  could  only 
be  reached  and  Presidential  elections  rendered  peaceful  and  safe 
by  an  organic  change,  which  would  place  the  choice  of  federal 
23f  magistrates  where  the  constitutions  of  the  States  have  generally 
placed  them — in  the  hands  of  the  people  If  time  has  demon 
strated  that  the  elective  democratic  principle  may  be  left  to  the 
wisdom  of  choice,  why  could  not  the  rule  apply  to  many  grades  of 
federal  officers  ? 

whathtv»      [3.]  The  President  shall  have  power  to  fill  up  all 
rncuteiev?    vacancies  that  may  happen   during  the  recess  of  the 
184,  §3.        Senate,  by  granting  commissions  which  shall  expire  at 
the  end  of  their  next  session. 

Ifthevacnn-       185.    "ALL  VACANCIES  THAT   MAY  HAPPEN  DURING  THE   RECESS 

cies  occur     OF  TIIE  SENATE." — Mr.  Wirt,  in  1823,  Mr.  Taney,  in  1832,  and  Mr. 

•ession  ?h*    ^egare,   in   1841,  concur  in  opinion  that  vacancies  first  occurring 

184.'        during  the  session  of  the  Senate  may  be  filled  by  the  President  in 

the  recess.     Mr.  Mason,  in  a  short  opinion  given  in  1 845,  held  that 

vacancies  known  to  exi^t  during  the   session   could  not  be  filled  -in 

the  recess;  but  in  a  more  elaborate  opinion,  written  in    1846,  ho 

25.         expresses  general  concurrence   with  his  three  predecessors.     Ail 

32.         these   concurring  opinions  give  a  construction  to  the  meaning  of 

the  words;  and  they  agree  that  these  words  are  not  to  be  confined 

to  vacancies  which  first  occur  during  the  recess,  but  may  apply  to 

vacancies  which  first  occur  during  the  session  and  continue  in  the 

recess.     Attorney-General  Staubery  on  the  President's  power  in 

the  matter  of  appointments  to  office,  30th  Aug.  186G,  p.  4. 

How  may          1.  The     vacancy   may    not    have   become    known   during   tho 

the  vacancy  recess ;   2.  It  may  have  occurred  by  the  failure  of  the  Senate  to 

act  upon  a  nomination ;  3.  Or,  upon  a  nomination   and  confirma- 

179.         tion,  where  the  party  so   nominated  and  confirmed  refuses  in  the 

recess  to  accept  the  office;  4.  Or  by  the  rejection  of  the  nominee 

of  the  President  in  the  last  hour  of  the  session;  5.     Or  by  the 

failure  of  the  President  to  make  a  nomination  during  the   session 

143.        or  after  a  rejection  of  his  nominee.     Id. 

What  means      The  subject-matter  is  a  vacancy.     It  implies  duration — a  tondi- 

'•  that  may    tion   or   state  of  things   which  may  exist.      I   incline  to    think, 

hnppon"?      l)pon   the   mere  wor(iSj  that    we   might   construe    them  precisely 

as  if  the  phrase  were,  "If  it  happen  that  there  is  a  vacancy  in 

the  recess,"  or,  "  If  a  vacancy  happen  to  exist  in  the  rocess."     Id. 

5,6. 


Cl.  3.]  PRESIDENT'S  DUTIES,  186,  187.  183 

But  if  the  office  first  occur  during  the  recess ;  or  if  it  be  created 
during  the  session  and  the  President  fail  to  appoint,  he  cannot  ap 
point  during  the  recess.  The  word  "HAPPEN"  has  relation  to 
some  casualty,  not  provided  for  by  law.  (The  appointment  of  the 
Ministers  to  Ghent,  in  1813;  Senate  Journal  of  20th  April,  18'22  ;  2 
Executive  Journal,  pp.  415,  500;  3  Executive  Journal,  297.) 
Story's  Const.  §  1559. 

He  may  fill,  during  a  recess  of  the  Senate,  a  vacancy  that  oc 
curred  by  expiration  of  commission  during  a  previous  session.  1 
Opin.  631.  So  he  may  fill  a  vacancy  whicli  has  occurred  by  the 
expiration  of  a  former  temporary  appointment,  the  Senate  having 
neglected  to  act  on  a  nomination  to  fill  the  office.  3  Id.  673  ;  4 
Id.  523;  2  Id.  525;  4  Id.  361. 

1§6.  "WHICH  SHALL  EXPIRE  AT  THE  END  OF  THE  SESSION." — Length  of 
The  commission  of  an  officer  appointed  during  a  recess,  who  is  commis- 
aftervvard  nominated  and  rejected,  is  not  thereby  determined  :   it slc 
continues  in  force  until  the  end  of  the  next  session,  unless  sooner 
determined  by  the  President.     2  Opin.  336;  4  Id.  30. 

It  was  upon  this  state  of  facts  that  Mr.  Taney  gave  his  opinion  What  means 
in  1832,  and  held  on  this   point  that  "the  vacancy  did  take  place  "which shall 
in   the    recess,"    and   that  "  the    former   appointment    continued  £„{{"£  the  '" 
during  the  session,  and  there  was  no  vacancy  until   after  they  ad-  session  "  ? 
journed."     Stanbery  on  filling  vacancies,  6.  184. 

If  the  President  appoint  and  commission,  both  expire  at  the 
end  of  the  next  session.  If  he  nominate  the  same  person,  and  the 
Senate  concur,  it  is  a  new  appointment ;  and  the  bond  given  "  to 
fill  up  the  vacancy,"  does  not  apply  to  acts  done  under  the  new 
appointment  and  commission  (United  States  v.  Kirkpatrick,  9 
Wheat.  720,  733,  734,  735.)  Story's  Const.  §  1538. 

SEC.  III. — He  shall,  from  time  to  time,  give  to  the  what  are 
Congress  information  of  the  state  of  the  Union,  andenjoinmi 
recommend  to  their  consideration  such  measures  as  he  President? 
shall  judge   necessary  and  expedient.      He  may,  on  Further 
extraordinary  occasions,  convene  both  houses,  or  either1'0 
of  them ;  and  in  case  of  disagreement  between  them, 
with  respect  to    the    time   of  adjournment,  he   may 
adjourn  them  to  such  time  as  he  shall  think  proper. 
He  shall  receive  ambassadors  and  other  public  min 
isters.     He  shall  take  care  that  the  laws  be  faithfully 
executed,  and  shall  commission  all  the  officers  of  the 
United  States. 

187.  "GIVE  INFORMATION  OF  THE  STATE  OF  THE  UNION,  AND  iiow nre  tho 
RECOMMEND,"  <£c. — The  opening  messages  of  Presidents  Washington  '"pinions 
and  John  Adams  were  delivered  in  person  and  answered.     1  Ben-  »lvcn 
ton's  Coud.  Debates;  Story's  Const  3d  ed.  §  1561,  note  1.     See 


184:  PRESIDENT,   187-189.  [Art.  Il, 

1  Tuck.  Bl.  Com.  343-345  ;  Federalist,  No.  78  ;  Rawle's  Const,  ch. 
16,  p.  171. 

The  practice  was  changed  by  President  Jefferson  ;  and  ever  since 
all  messages  have  been  delivered  in  writing.  This  u  information 
of  the  state  of  the  Union,"  embraces  the  reports  of  all  the  depart 
ments,  and  altogether  they  constitute  what  are  called  the  executive 
documents  of  the  government,  which  are  valuable  repositories 
for  statesmen  and  students.  Calls  are  often  made  by  Congress  on 
the  President  and  the  heads  of  departments,  for  information  on 
special  matters. 

Have  extra         1§§.    "MAT    CALL    CONGRESS    TOGETHER  AND    ADJOURN,"  &C. — 
sessions        rjijjjs  pOWer  of  convening  Congress  in  extra  session,  has  been  fre- 
called?          quently  exercised,    both  in  regard  to  Congress   and   the    Senate. 
Never  could  the  necessity  of  the  power  be  more  forcibly  demon 
strated  than  upon  the  occasion  of  its  exercise  by  President  Lincoln, 
in  April,  1863.     See  Federalist,  No.  78  ;  Rawle's  Const.,  ch.  16,  p. 
171. 

It  is  not  remembered  that  the  occasion  ever  has  arisen  for  the 
President  to  exercise  the  power  to  adjourn  Congress. 

What  doe?  The  power  to  receive  AMBASSADORS  AND  OTHER  PUBLIC  MINIS- 
'•umbas-  TERS  carries  along  the  power  to  receive  consuls,  and  they  never 
o*h°JS  public act  without  exequaturs.  Rawle's  Const,  ch.  24,  pp.  224,  225. 
minister*"  Story's  Const.  §  1564-1572.  See  Federalist,  No.  42;  1  Kent's 
embrace?  Com.  Lect.  2,  pp.  40-44.  Halleck's  International  Law,  p.  242,  §  4  ; 
ISO,  1S1,  Fynn,  British  Consuls  abroad,  pp.  34-55  ;  2  Phiilimore  on  Inter 
national  Law,  §  246,  258. 

In  case  of  a  revolution,  or  dismemberment  of  a  nation,  the  judi 
ciary  cannot  take  notice  of  any  new  government  or  sovereignty, 
until  it  has  been  duly  recognized  by  some  other  department  of  the 
government,  to  whom  the  power  is  constitutionally  confided. 
(United  States  v.  Palmer,  3  Wheat.  610,  634,  643;  Hays  v.  Gel- 
ston,  3  Wheat.  246,  323,  324;  Rose  v.  Himley,  4  Cr.  441  ;  the 
Divina  Pastora,  4  Wheat.  52,  and  note  65 ;  the  Nuestra  Sefiora 
de  la  Caridad,  4  Wheat.  497.)  Story's  Const.  §  1566. 

What  is  the         189.    "HE   SHALL  TAKE  CARE   THAT  THE   LAWS   BE    FAITHFULLY 

duty  of  the   EXECUTED." — That  is,  to  execute  the  laws  to  the  extent  of  the  defen- 
to's^tho      B've  means  place(i  m  his  hands.     9  Op.  524. 

law*  «*••          The  Supreme  Court  of  the  United  States  cannot  enjoin  the  Pres 
ented  '!          ident  from   seeing  the   laws    faithfully   executed.     Mississippi  v. 
204.        Johnson,  4  Wallace,  498.     Where  an  executive  officer  is  clothed 
with  discretion,  the  act  to  be  done  is  executive,  and  beyond  judi 
cial  control.     (Marbury  v.  Madison,  1  Cranch,  137  ;  Kendall,  Post 
master-General  v.  Stockton  and  Stokes,  12  Pet.  527.)     Id.;  Tho 
State  v.  The  Southern  P.  R.  R.  24  Tex.  117 ;  Paschal1  s  Annotated 
Digest,  note  1.91. 

174, 175.  It  is  of  the  very  essence  of  executive  power,  that  it  should  always 

and  everywhere  be  capable  of,  and  be  in,  full  exercise.  There  shall 
be  no  cessation — no  interval  of  time  when  there  may  be  an  inca 
pacity  of  action.  Stanbery  on  filling  vacancies,  8,  9. 

Under  this  power  the  governor  (the  President)  ought  to  order 
suits  in  all  cases  where  the  laws  are  infracted  and  the  rights  of  the 
government  invaded.  The  State  v.  Delesdenier,  7  Tex.  95. 


Sec.  3,  4.]  IMPEACHMENT,    190,    191.  185 

190.  "SHALL  COMMISSION  ALL  OFFICERS." — This  seems  to  bo  185, 1S5. 
more  properly  connected  with  the  appointing  of  officers ;  but  it  is 

not  one  and  the  same  thing.     Marbury  v.  Madison,  1  Cr.  156-7  ; 
Story's  Const.  §  1548. 

As  incident  to  this  power,  he  has  authority  to  appoint  commis-  What  are 
sioners  and  agents  to  make  investigations  required  by  acts  or  reso- the  Presl- 
lutions  of  Congress  ;  but  cannot  pay  them,  except  from  an  appro-  ^ 
priation  for  that  purpose.  4  Opin.  248.  It  is  not,  in  general, 
judicious  for  him,  in  the  exercise  of  this  power,  to  interfere  in  the 
functions  of  subordinate  officers,  further  than  to  remove  them  for 
any  neglect  or  abuse  of  their  official  trust.  3  Id.  287.  But  where 
combinations  exist  among  the  citizens  of  one  of  the  States,  to 
obstruct  or  defeat  the  execution  of  acts  of  Congress,  and  the  ques 
tion  of  the  constitutionality  of  such  laws  is  made  in  suits  against  a 
marshal  of  the  United  States,  the  President  is  justified  in  assuming 
his  defense  on  behalf  of  the  United  States.  6  Id.  220,  500. 

The  various  acts  of  President  Lincoln,  in  calling  out  the  militia, 
organizing  an  army,  and  proclaiming  a  blockade  of  the  Southern 
ports,  in  April,  1861,  for  the  suppression  of  the  rebellion,  were 
approved,  ratified,  and  confirmed  by  a  joint  resolution  of  Congress, 
in  August,  1861.  The  President  was  the  judge  of  his  powers,  and 
the  court  is  bound  by  his  acts.  The  Prize  Cases,  2  Black,  666. 

SEC.  IV. — The  President,  Vice-President,  and   all 
civil  officers  of  the  United  States,  shall  be  removed  ™"oy be 
from  office  on  impeachment  for,  and  conviction  of, impeachcd  ? 
treason,  bribery,  or   other   high   crimes   and  misde 
meanors. 

191.  "  CIVIL  OFFICERS." — The  remedy  is  strictly  confined  to  27,  39,  40. 
civil  officers,  in  contradistinction  to  military.     Story's  Const.  §  690, 

691. 

A  senator  or  representative  in  Congress  is  not  such  civil  officer.  Who  are 
Blount's  Trial,  22,   102;   Wh.  St.  Tr.  260,'316;    1  Story's  Const.  civil 
§  793,  802.     See  2d  vol.  Senate  Journal  (1797),  383-393.     Nor  is  a  ofl 
territorial  judge,  not  being  a  constitutional,  but  a  legislative  office 
only.     3  Opin.  409.     But  United  States  circuit  and  district  judges 
are  subject  to  impeachment.     Peck's  Trial,  20,  and  Chase's  Trial. 

No  previous  statute  is  necessary  to  authorize  an  impeachment  Where  must 
for  any  official  misconduct.     What  are,   and  what  are  not  high  ^'f  -lo.°?c  lor. 
crimes  and  misdemeanors,  is  to  be  ascertained  by  a  recurrence  to  l  e 
the  rules  of  the  common   law.     1   Story's  Const.  §  799.      Peck's 
Trial,  499.     For  the  rules  of  proceedings  prescribed  in  cases  of 
impeachment,  see  Peck's  Trial,  5G-9. 

Blourit  was  expelled  as  a  senator  fora  "high  misdemeanor;" 
but  the  Senate  refused  to  consider  him  a  "  civil  officer,"  liable  to 
"  impeachment."  See  2  Senate  Journal,  pp.  383-397.  The  "  high 
misdemeanor,"  was  not  in  the  violation  of  any  particular  statute.  What  is  an 

44  An  impeachment  before  the  Lords  by  the  Commons  in  Great  lmP° 
Britain,  in   Parliament,  is  a  prosecution  of  the  already  known  and  th^c 
law,  and  has  been  frequently  put  in  practice,  being  a  law  ? 


186 


IMPEACHMENT,    CRIMES,  192-194.        [Art.  II. 


27,  39,  177. 


What  must 
the  treason 


For  what 
must  it  bo 
defined? 


presentment  to  the  most  high  and  supreme  court  of  criminal  juris 
diction  by  the  most  solemn  grand  inquest  of  the  whole  kingdom  " 
(4  Blackstone,  259) ;  and  when  this  most  high  and  supreme  court 
of  criminal  jurisdiction  is  assembled  for  the  trial  of  a  person  im 
peached  for  a  violation  of  the  "  already  known  and  established 
law,"  it  must  proceed  according  to  the  known  and  established  law, 
for  although  '•  the  trial  must  vary  in  external  ceremony,  it  differs 
not  in  essentials  from  criminal  prosecutions  before  interior  courts. 
The  same  rules  of  evidence,  the  same  legal  notions  of  crimes  and 
punishments  prevail."  (Woodeson,  vol.  2,  611.)  Minority  report 
on  the  Impeachment  of  the  President,  62.  See  2  Chase's  Trial,  137  ; 
Rawle's  Const.  204. 

192.  "  TREASON  AND  BRIBERY." — TREASON  against  the  United 
States  shall  consist  only  in  levying  war  against  them  or  in  adher 
ing  to  their  enemies,  giving  them  aid  and  comfort.  Art.  3,  sec.  3. 
The  treason  must  be  against  the  United  States.  (Rawle's  Const, 
ch.  22,  p.  215.)  Story's  Const.  §  802. 

BRIBERY  is  the  offense  of  taking  any  undue  reward  by  a  judge, 
juror,  or  other  person  concerned  in  the  administration  of  justice,  or 
by  a  public  officer,  to  influence  his  behavior  in  his  office,  (4  Black. 
Com.  139,  and  Chitty's  note;  3  Inst.  145;  4  Burr,  2494;  1  Russel 
on  Crimes,  154.)  Bun-ill's  Law  Die.,  BRIBERY. 

For  this  definition  resort  must  necessarily  be  had  to  the  com 
mon  law.  Story's  Const.  §  796;  Peck's  Trial. 

No  other  crimes  than  bribery  and  treason  can  regularly  bo 
inquired  into  as  ground  of  impeachment.  Rawle's  Const,  ch.  22, 
p.  215.  But  neither  this  point,  nor  whether  any  other  than  a  public 
officer  can  be  impeached,  has  been  authoritatively  settled.  Story's 
Const.  §  802,  803. 

Define  high      193.  "  HIGH  CRIMES." — Crime  or  misdemeanor  is  an  act  corn- 
crimes?         mitted.  or  omitted,  in  "iolation  of  a  public  law,  either  forbidding  or 
27,39,194,     commanding  it.     4  Bl.  Com.  5.     This  general  definition  compro- 
212,  223.        hends  both  crimes  and  misdemeanors.     Id.     Crime,  in  a  narrower 
sense,  is  distinguished  from  a  misdemeanor,  as  being  an  offense  of 
a   deeper  and  more  atrocious  dye,  and  usually  amounting  to  a 
felony.  4  Bl.  Com.  5;  Burrill's  Law  Die.,  CRIME;    Minority  report 
on  the  Impeachment  of  the  President,  61.     A  breach  or  violation 
of  some  public  right  or  duty  to  a  whole  community,  considered  as 
a  community,   in   its  social  aggregate  capacity;  as  distinguished 
from  civil  injury.     4  Bl.  5. 

The  violation  of  a  right,  when  considered  in  reference  to  the  evil 
tendency  of  such  violation,  as  regards  the  community  at  large. 
4  Stephen's  Com.  55;  1  Id.  127,  128.  In  this  sense  it  includes  mis 
demeanors.  Burrill's  Law  Die.,  CRIME. 

Define  mis-       194.  "MISDEMEANOR"  is  a  less   heinous   species  of  crime;  an 
demeanor?    indictable  offense  not  amounting  to  felony.    4  Bl.  Com.  by  Chitty.  5, 
27.  39, 192,     note;  Bunill's  Law  Die.,  MISDEMEANOR.    Properly  speaking,  crime 
and  misdemeanor  are  synonymous.     Id.;  4  Steph.  Com.  57. 

In  general,  a  misdetn-anor  id  used  in  contradistinction  to  felony, 
and  comprehends  all  indictable  offenses  which  do  not  amount  to 
folony ;  as  perjury,  battery,  libels,  conspiracies,  attempts  and  so- 


Sec.  4.]  IMPEACHMENT,    194.  187 

Hesitations  to  commit  felonies,  &c.  4  Bl.  Com.  notes  5,  6 ;  Paschal's 
Annotated  Digest,  1658-1660. 

The  case  of  Judge  Humphries,  at  the  commencement  of  the  re 
bellion,  was  upon  charges  of  disloyal  acts  and  utterances,  some  of 
which  clearly  did  not  set  forth  offenses  indictable  by  statute  of  the 
United  States,  and  yet  upon  all  those  charges,  with  one  exception 
only,  he  was  convicted  and  removed.  Report  upon  the  Impeach 
ment  of  the  President,  52,  53.  The  minority  say  that  they 
amounted  to  treason,  because  he  advised  secession  by  Tennessee, 
after  the  ordinance  by  South  Carolina  and  the  levying  war  by  that 
State.  Id.  68. 

It  has  been  insisted  that  none  but  an  offense  against  a  statute  of  Must  tbo 
the  United  States  is  impeachable.     (1  Chase's  Trial,  9-18,  47,  48  ;  offe.»*e  b« 
4  Elliot's  Debates,  262  ;   Rawle's  Const,  ch.  29,  p.  273.)    Story's  JJJJJJJ* 
Const.  §  796  ;  Minority  Report  on  tho  Impeachment  of  the  Presi-        192. 
dent,  61. 

Where  any  offense  is  punishable  by  an  act  of  Congress,  it  ought 
to  be  impeachable.  Story's  Const.  §  796. 

So  political  offenses,  impeachable  at  common  law,  may  be  so 
classified.  Id.  §  764,  763,  797,  798,  799;  Jefferson's  Manual,  §  53, 
title,  IMPEACHMENT;  Blount's  Trial,  29-31,  75-80;  Farrar,  §  494- 
496;  Curtis'  Com.  p.  360. 

No  one  of  the  cases  yet  tried  rests  upon  statutable  misdemean 
ors.  Story's  Const.  §  799 ;  Report  upon  the  Impeachment  of  tho 
President,  pp.  51-53. 

For  the  English  parliamentary  cases,  see  2  Woodeson's  Law  Lect. 
40,  p.  602  ;  Comyn's  Dig.  Parliament,  28-40;  Story's  Const.  §  800. 

Mr.  Madison  said:   ''He  (the  President)  will  bo  impeachable  by  What  woro 
this  House,  before  the   Senate,  for  such  an  act  of  maladministra-  Madison's 
tion :  the  wanton  removal  of  meritorious  officers  would  subject  Vlt 
him  to  impeachment  and  removal  from  his  high  trust."     (Lloyd's  184-186. 
Debates,  503,  351,  450;  4  Elliot's  Debates,  141.)     Farrar's  Const. 
§  495,  496. 

Whether  offenses  not  connected  with  office  are  impeachable  is 
etill  unsettled.  Story's  Const.  §  803-805. 

While  this  work  was  running  through  the  press,  a  majority  of  the  State  tho 
judiciary  committee  (on  the    25th  November,  1867)  made  a  report  history  of 
to  the  House  of  Representatives  (in  response  to  a  resolution  of  £ntv£ 
the  House),  wherein  they  impeached  ANDEEW  JOHNSOX,  President  pcaehinent? 
of  the  United  States,  of  "  High  crimes  and  misdemeanors."     The 
report  was  signed  by  five   members ;  the  minority,  including  the 
chairman,  dissented.    The  report  is  long,  and  the  evidence  is  volu 
minous. 

The  committee  did  not  charge  the  violation  of  any  criminal  stat 
ute.  The  charges  are  sundry  usurpations  of  congressional  power ; 
willful  efforts  to  defeat  the  work  of  reconstruction  in  the  rebel 
States,  and  the  encouragement  of  those  who  were  engaged  in  the 
rebellion.  All  the  charges  hinge  upon  this  one  point.  But,  in 
the  specifications,  there  are  sundry  charges  of  the  violation  of 
statute  law:  particularly  in  using  money  appropriated  for  other 
purposes  to  support  the  President's  own  reconstruction  measures; 
in  levying  taxes  ;  using  United  States  property ;  restoring  aban 
doned  and  captured  property;  ordering  the  dispersal  of  the  Louisi- 


188  IMPEACHMENT,    194.  [Art.  II.,  III., 

ana  Convention ;  and  conspiracies  with  and  pardons  of  prominent 

rebels,  and  appointing  them  to  office.     See  Report,  1-47,  55-59. 

State  the  It  is  urged  by  the  minority  of  the-  committee,  that  an  impeach- 

leg:il  nrpi-    ment  will  only  lie  for  offenses  which  are  indictable  ;  that  the  house 

minority?0  *3   to  imPeacu  f°r  offenses,  not  to  create  them;  that  nothing  is 

143.  '  penal  except  crimes  (13  Encyc.  Brit.  275);  that  Black  stone's  defini 
tion  of  municipal  law  (1  Bl.  Com.  44)  is  to  be  observed;  that  no 
ex  post  facto  law  shall  be  passed ;  that  the  definitions  of  crime 
(the  same  stated  in  this  note)  are  to  control :  that,  in  the  trial, 
the  Senate,  like  the  House  of  Lords,  is  a  high  criminal  court,  gov 
erned  by  the  same  rules  of  law  and  evidence  as  other  criminal 

212.  courts ;  that  the  fact  that  the  party  can  be  convicted  in  another 
court  proves  this  ('2  Chase's  Trial,  137);  that  they  must  be  "  crimes" 
such  as  are  entitled  to  jury-trial  (Art.  III.  Sec.  2);  that  Blount's 
trial  was  for  crimes  (but  against  what  criminal  law  is  not  shown) ; 
that  while  Pickering's  offense  may  not  have  been  criminal,  the  plea 
of  insanity  was  ignored,  and  the  case  is  a  disreputable  precedent ; 
that  Chase  must  have  been  acquitted  because  mere  misconduct 
as  a  judge  was  not  a  crime  or  misdemeanor.  In  Blount's  case, 
49.  several  of  the  charges  were  proved.  They  were;  ""With  intending 
to  carry  into  effect  a  hostile  expedition  in  favor  of  the  English  against 
the  Spanish  possessions  of  Louisiana  and  Florida;  with  attempts 
to  engage  the  Creek  and  Cherokee  Indians  in  the  same  expedition ; 
with  having  alienated  the  affections  of  the  said  Indians  from  Ben. 
Hawkins,  an  agent  of  the  United  States  among  the  Indians,  the 
better  to  answer  his  said  purposes ;  witli  having  seduced  Jamea 
Gary,  an  interpreter  of  the  United  States  among  the  Indians,  for 
the  purpose  of  assisting  in  his  criminal  intentions  ;  and  with  having 
attempted  to  diminish  the  confidence  of  the  Cherokee  Indians  in 
relation  to  the  boundary  line,  which  had  been  run  in  consequence 
of  the  treaty  which  had  been  held  between  the  United  States  and 
the  said  Indians."  (1  Annals  of  5  Cong.  499,  919.)  That  the 
plea  to  the  jurisdiction  was  sustained,  on  the  ground  that  Biount 
was  not  a  civil  officer.  (Id.  2318,  2319.)  That  while  Peck  was 
only  arraigned  for  misconduct,  or  official  misbehavior,  ho  did  not 
demur  to  the  charge,  but  affirmed  the  justice  of  his  action ;  that 
if  the  point,  that  a  judge  may  be  tried  for  want  of  "good  beha- 

197.  vior,"  may  be  admitted,  it  cannot  apply  to  the  President,  whose 
tenure  is  for  four  years ;  that  the  charges  against  Humphries  were 

217.  of  treason,  because  they  were  words  and  acts  after  the  levying  of 
war  by  South  Carolina ;  that  a  fair  review  of  the  English  cases 
shows  that  Parliament  rested  all  cases  upon  some  indictable 
offense,  though  it  is  admitted  that  definitions  have  been  strained ; 
fifty-five  cases  given  by  Hatsell  are  named  (p.  71);  where  the 
effort  to  explain  fails,  the  precedents  are  boldly  attacked;  the 
current  of  precedents  is  cited  to  show  that  the  federal  courts  can 
only  entertain  jurisdiction  of  crimes,  defined  and  made  penal  by 
Congress  (United  States  v.  Hudson,  7  Cr.  32  ;  United  States  v. 
Cooli'lge,  1  Wheat.  415  ;  Ex  parte  Bollman  and  Swartwout,  4  Cr.  95  ; 
United  States  v.  Lancaster,  2  McLean,  33,  and  various  others, 
77,  78):  that  the  same  principle  should  apply  to  the  high  court  of 
impeachment;  that  "other  high  crimes  and  misdemeanors,"  means 
such  as  may  bo  declared  by  the  law-making  power  of  the  United 


Sec.  4,  1.]  JUDICIAL    POWER,    195.  189 

States,  (Rawle's  Const.  265) ;  and  the  rest  of  the  report  is  principally 
devoted  to  the  facts.  Report  upon  Impeachment  of  the  Presi 
dent,  64-78.  The  whole  argument  is,  that  the  impeachment  must 
be  for  treason  within  the  constitutional  definition;  for  bribery 
within  the  then  common-law  definition ;  or  if  for  other  high 
crimes  and  misdemeanors,  then  they  must  be  such  as  are  created 
by  some  penal  enactment  of  Congress ;  and  not  such  as  existed 
at,  and  were  impeaohable  by,  the  common  law.  The  majority  of 
the  committee  assume  that  high  crimes  and  misdemeanors  may 
consist  in  oppressive,  unjust,  corrupt,  and  unauthorized  official 
misconduct,  although  not  indictable.  It  is  not  within  the  plan  of 
this  work  to  give  the  conclusions  of  the  author,  derived  from  the 
same  class  of  reading.  This  hour  of  the  country's  history  is  not 
fortunate  for  a  calm  investigation.  If  we  admit  the  conclusions  of 
the  minority  report,  the  difficulty  is  only  removed;  for  still  the 
question  would  remain — which  of  the  statute  offenses  would  be 
the  subject  of  impeachment  ?  Shall  they  be  piracy,  homicide, 
larceny,  forgery,  counterfeiting,  robbery,  defalcations,  or  any  ono 
of  the  hundred  felonies  and  misdemeanors  spread  over  the 
statutes  ?  And  shall  they  be  confined  to  offenses  committed  with 
in  the  criminal  jurisdiction  of  the  United  States  ?  Such  only  are 
indictable.  Or  may  an  impeachment  bo  for  an  infamous  crime 
ngainst  the  laws  of  a  foreign  country? 

The  question  being  now  afloat  upon  the  sea  of  public  opinion, 
he  can  only  hope  that  future  writers  may  have  more  satisfactory 
guides.  The  house  by  a  large  majority  sustained  the  minority 
report  and  refused  to  impeach,  but  still  it  can  hardly  be  regarded 
as  settling  the  principle,  that  nothing  is  impeachable  except  what 
is  indictable  as  an  offense  against  the  United  States. 

ARTICLE  III. 

SEC.  1. — The  judicial  power  of  the  United  States,  pcflne  tbo 
shall  b3  vested  in  one  Supreme  Court,  and  in  such  in- power! 
ferior  courts  as  the  Congress  may,  from  time  to  time, 
ordain  and  establish.    The  judges,  both  of  the  supreme  Tenure  of 
and   inferior  courts,  shall  hold    their  offices    during0  cem. 
good  behavior  ;  and  shall,  at  stated  times,  receive  for 
their  services,  a   compensation,  which    shall  not  be  componsa- 
diminished  during  their  continuance  in  office. 

195.  "THE  JUDICIAL  POWER  OF   THE  UNITED   STATES." — Ju-  Define  judi- 
dicialis,  judex,  a  judge,  or  judicmm,  a  judgment.      Bun-ill's  Law  cial  Power  ? 
Die.,  JUDICIAL.     It  is  the  power  to  hear  and  determine  controvor-  8,  210,  218. 
sies  between  litigants,  upon  proper  cases  of  law  and  fact  presented 
for  adjudication. 

The  object  was  to  establish  a  judiciary  for  the  United  States,  a  what  was 
necessary  department,  which  did  not  exist  under  the  C on federa- the  object? 
tion.     (Federalist,  Nos.  22,  28.  8»,  8L ;  2  Wibon's  Law  Lect.  ch.  3, 
p.  201;    3   Elliot's  Debates,   142,   143;   Osborn  v.   United   States 


190 


JUDICIAL    POWEU,    195. 


[Art.  III., 


How  is  the 
power  con- 
tradistin- 
puished 
from  tho 
hiw  ? 


233. 


On  what 
does  tho 
jurisdiction 
depend  ? 
210,  211. 


Define 
"shullbo 
vested  ?" 
211. 


Stale  the 
divisions  of 
power  ? 
141,  165. 
199. 


275. 
109. 


What  is  the 
Supreme 
Court  ? 

210,  211. 


Bank,  9  Wheat.  813.  81f) ;  1  Kent's  Com.  Lect.  11,  pp.  290-297.) 
Story's  Const.  §  1574;  Montesquieu's  Spirit  of  Lnvs,  b.  11,  ch.  0; 
Rawle's  Const,  ch..  21,  p.  199.  Chisholm  v.  Georgia,  Ball.  419, 
474.  For  the  great  necessity  and  duties  of  a  national  judiciary,  also 
see  Cohens  v.  Virginia,  6  Wheat.  384-390 ;  Id.  402-404,  415  ;  M  ir- 
bury  v.  Madison,  1  Cr.  137  ;  Curtis'  Commentaries,  §  2.  With 
jurisdiction  to  the  full  extent  of  the  Constitution,  laws,  and  treaties 
of  the  United  States.  Osborn  v.  United  States  Bank,  9  Wheat. 
819;  Martin  v.  Hunter,  1  Wheat.  328. 

JUDICIAL  POWER,  as  contradistinguished  from  the  power  of  tho 
laws,  has  no  existence.  Courts  are  the  mere  instruments  of  the 
law  and  can  will  nothing.  Their  discretion  is  a  mere  legal  dis 
cretion.  Judicial  power  is  never  exercised  for  the  purpose  of 
giving  effect  to  the  will  of  the  judge  ;  but  always  of  the  legislature 
or  will  of  the  law.  Osborn  v.  Bank  of  United  States,  9  Wheat. 
818,  819,  866;  1  Kent's  Com.  Lect.  14,  p.  277;  3  Story's  Const. 
§  1574,  note  3  of  3d  edition.  But  must  regard  the  Constitution  as 
paramount.  Marbury  v.  Madison,  1  Cr.  178;  1  Kent's  Com.  Lect. 
20,  pp.  448,  460 ;  Cohens  y.  Virginia,  6  Wheat.  414. 

The  jurisdiction  of  the  courts  of  the  United  States  depends  ex 
clusively  on  the  Constitution  and  laws  of  the  United  States. 
Livingston  v.  Jefferson,  1  Brock.  203 ;  American  Insurance  Co.  y. 
Canter,  1  Pet.  511;  1  Curtis'  Com.  §  4;  United  States  v.  Drenuer, 
Hemp.  320 ;  United  States  v.  Albert!,  Id.  444.  The  federal  courts 
have  the  right  to  determine  their  own  jurisdiction.  (The  United 
States  v.  Peters,  5  Cr.  1.15  ;  The  United  States  v.  Booth,  21  How. 
506.)  Freeman  y.  Howe,  24  How.  459-4(51. 

"  SHALL  BE  VESTED  "  is  mandatory  upon  the  legislature.  Its 
obligatory  force  is  so  imperative,  that  Congress  could  not,  without 
a  violation  of  its  duty,  have  refused  to  carry  it  into  operation. 
Martin  v.  Hunter,  1  Wheat.  304,  328-337  ;  1  Kent's  Com.  Lect.  14, 
pp.  290-293.  Congress  can  only  VEST  the  power  in  courts  created 
by  itself.  Id.;  Story's  Const.  §  1501-1503.  The  words  afford  an 
absolute  grant  of  judicial  power.  Id.;  Story's  Const.  §  1594. 

All  legislative  power  shall  be  vented  in  a  Congress ;  all  executive 
power  in  a  President ;  all  judicial  power  shall  be  (not  may  be)  vested 
in  one  Supreme  Court  and  in  such  inferior  courts,  &c.  These  powers 
are  thus  absolutely  vested,  and  it  is  the  dutv  of  Congress  to  vest 
the  whole  judicial  power.  (Martin  v.  Hunter,  1  Wheat.  304,  337.) 
Story's  Const.  §  1590,  1591;  1  Kent's  Com.  Lect.  11,  p.  221. 
And  yet  it  cannoc  be  denied  that  the  duty  of  Congress  to  vest  the 
whole  judicial  power,  by  proper  legislation,  is  one  thing;  and  the 
power  to  enforce  that  duty  through  any  other  department  of  tho 
government,  or  to  exercise  it  until  distributed  by  legislation,  is 
another. — [EDITOR. 

"Ix  ON'E  SUPREME  COURT." — SUPREME,  here  means  the  highest 
national  tribunal,  with  both  original  and  appellate  jurisdiction.  But 
this  can  only  have  original  jurisdiction  in  two  classes  of  cases ; 
those  affecting  ambassadors,  &c.;  and  where  a  State  is  a  party. 
(Martin  v.  Hunter,  1  Wheat.  304,  337.)  Story's  Const.  §  j.r>0::. 
Congress  cannot  vest  any  portion  of  the  power  in  State  courts, 
only  in  court*  established  by  itself. 


Sec.  1.]       INFERIOR  COURTS — JUDGES,  196,  197.  191 

1J)S.  *'  Sue n  INFERIOR  COURTS  " — Congress,  having  the  power  state  the 
to  establish  inferior  courts,  must,  as  a  necessary  consequence,  have  power  over 
the  right  to  define  their  respective  jurisdictions.     Sheldon  v.  Sill,  8  g",),!^ 
How.  448-9;  Osborn  v.  United  States  Bank,  9  Wh.  7:58  ;   Turner  194, 195. 
v.  Bank  of  North  America,  4  Dallas,  10;   Mclntyre  v.  Wood,  7  Cr. 
50»;  Kendall  v.  United  States,   12   Pet.  616;  Gary  v.    Curtis,  3 
How.  245. 

Therefore.   "INFERIOR  COURTS"  HAVE   TO  BE  ORDAINED   AND  Why 
ESTABLISHED  in  order  that  the   whole   "judicial  power"  may  beinferio£ 
exercised.      (Martin   v.   Hunter.   3   Cr.    316.)      Story's    Const.    § co 
1533. 

Congress  has  the  exclusive  power  of  legislating  over  the  terri-  231,  232. 
tories,  and  consequently  the  Supreme  Court  has  appellate  jurisdic 
tion  over  the  courts  established  therein.  (Bonuer  v.  Porter,  9 
How.  235,  236.)  Freeborn  v.  Smith,  2  Wall.  173.  And  see  Ameri 
can  Insurance  Co.  v.  Canter,  1  Pet.  511;  Hunt  v.  Palao,  4  How. 
5S9  ;  Benner  v.  Porter,  9  How.  244,  as  to  the  character  of  territo 
rial  courts. 

The  commissioners  of  the  Circuit  Courts  of  the  United  States  are  What  are 
officers  exercising  functions  of  justices  of  the  peace  under  tho  commis- 
laws  of  the  commonwealth.  Sim's  Case,  7  Cush.  731.  Congress  ^"^J'. 
might  appoint  justices,  without  commissioning  them  as  judges,  197,  193. 
during  good  behavior,  or  giving  them  fixed  salaries.  Id.  1W. 

197.  u  THE  JUDGES  BOTH   OF  THE   SUPREME   AND    INFERIOR  Define  good 

COURTS    SHALL    HOLD    THEIR  OFFICES    DURING   GOOD    BEHAVIOR."—  behavior  ? 
The  meaning   of  this   is  for   life   or   until   impeachment,  unless,  191-194. 
indeed,  there  be  power  to  abolish  circuits  and  districts,  and  thus 
to  dispense  with  supernumerary  or  objectionable  incumbents. 

For  a  full  note  of  the  State  Constitutions,  as  to  tenure,  seo  1 
Kent's  Com.  llth  edition,  p.  295,  note  (a.) 

The  territorial  judges  are  not  of  this  class,  as  they  only  hold 
four  years.  (American  Insurance  Co.  v.  Canter,  1  Pet.  546.) 
Benner  v.  Porter,  9  How.  244. 

JUDGES  FOR  A  TERM  OF  YEARS. — Courts  in  which  the  judges  hold  What  are 
their  offices  for  a  specific  number  of  years,  are  not  constitutional  j|(>ns^jitu" 
courts,  in  which  the  judicial  powers  conferred  by  the  Constitution  JQU^S? 
can  be  deposited.      American  Ins.  Co.  v.  Canter,  1  Pet.  511,  546. 
The   Supreme   Court   of   the  United    States  was   last   organized  Give  the 
asfollows: — Allotment,  &c.,  of  the  Judges  of  the  Supreme  Court  of  allotment? 
the  (Jnited  States,  as  made  April  8,  1867,  under  the  Acts  of  Con 
gress  of  July  23,  1866,  and  March  2,  1867. 


NAMK    OF    THE   JUDGE, 
AND    STATE    WHENCE 

NUMBER  AND  TERRITORY 

DATE  AND  AUTHOR  OF 
THE  JUDGE'S  COMMIS 

COMING. 

OF   THE   CIRCUIT. 

SION. 

f                FOURTH. 

1 

CHIEF-JUSTICE. 

I  MARYLAND,      WEST 

1864. 

HON.  S.  P.  CHASE, 
Ohio. 

j      VIRGINIA.  VIRGIN 
IA,  NORTH  CARO 
LINA,  AND  SOUTH 

r       December  Gth. 
I  PRESIDENT  LINCOLN. 

1     CAROLINA. 

J 

192 


JUDGES,    197. 


Art   III., 


KAME   OF    THE   JUDGE, 

AND    STATE    WHENCE 

COMING. 


NUMBKB   AND   TEURITOIIY 
OF    T1IE    CIKCUIT. 


{FIFTH. 
GEORGIA,    FLORIDA, 
ALABAMA,  MISSIS 
SIPPI,   LOUISIANA, 
AND  TEXAS. 


DATE  AND  AUTHOR  OF 
THE  JUDGE'S  COMMIS 
SION. 

1835. 

January  9th. 
PRESIDENT  JACKSON. 


HON.  SAML.  NEL 
SON,  New  York. 

SECOND. 

J  NEW    YORK,    VER-  I 

MONT,     AND     CON-    j 
I       NECTICUT.                      J 

1845. 
February  14th. 
PRESIDENT  TYLER. 

HON.  R.  C.  GRIER, 
Pennsylvania. 

C                 THIRD.                   "1 

J  PENNSYLVANIA,  NEW  I 
JERSEY,  AND  DEL-  f 

1       AWARE.                          J 

1846. 

August  4th. 
PRESIDENT  POLK. 

HON.  N.CLIFFORD, 
Maine. 

f                 FIRST.                   "| 

MAINE,  NEW  HAMP-  1 
-\      SHIRE,  MASSACHU-  Y 

SETTS,  AND  RllODE 

1858. 
January  12th. 
PREST.  BUCHANAN. 

L     ISLAND.                  J 

HON.  NOAH  H. 
SWAYNE,  Ohio. 

f                 SIXTH.                 "1 

J     OHIO,  MICHIGAN,     L 
KENTUCKY,  AND 
I         TENNESSEE.         J 

1862. 
January  24th. 
PRESIDENT  LINCOLN. 

HON.  S.  F.  MILLER, 
Iowa. 

f                EIGHTH.                  "I 

J    MINNESOTA,  IOWA,    I 
1   MISSOURI,  KANSAS,    f 
L     AND  ARKANSAS.      J 

1862. 
July  16th. 
PRESIDENT  LINCOLN. 

HON.  DAY.  DAVIS, 
Illinois. 

{SEVENTH.                } 
INDIANA,  ILLINOIS,    r 
AND  WISCONSIN.      ) 

1862. 

December  8th. 
PRESIDENT  LINCOLN. 

HON.  S.  J.  FIELD, 
California. 

/                   NINTH.                    } 

•]  CALIFORNIA,OREGON,  f 
(       AND  NEVADA.        ) 

1863. 

March  10th. 
PRESIDENT  LINCOLN. 

HENRY  STANBERY,  of  Kentucky,  Attorney-General;  DANIEL 
WESLEY  MIDDLETON,  of  the  District  of  Columbia,  Clerk ;  R.  C. 
PARSONS,  of  Ohio,  Marshal. 

The  following  have  been  Chief-Justices  of  the  Supreme  Court  of 
the  United  States :— 


Give  a  list 

Name. 
John  Jay  N  Y 

Term  of 
Service. 

.1789-1795 

Born. 
1745     .  . 

Died. 
1829 

of  the 

John  Rutledge  S  C 

1795-1795 

1800 

Judges? 

Oliver  Ellsworth   Conn 

1796-1801      .. 

1752     .. 

1807 

John  Marshall,  Ya  
Roo-er  B  Taney  Md. 

.1801-1835      .. 
1836-1864      .. 

1755     .. 
1777     .. 

1835 
1864 

Salmon  P.  Chase,  0.  ... 

1864-  

1809     .. 

Sec.  1.]  JUDGES — COMPENSATION,    197,   198. 


193 


The  following  have  been  Associate  Justices : — 


Name.' 


Term  of 
Service. 


Born. 


Died. 


John  Rutledge,  S.  C 1789-1791     1800 

William  Gushing,  Mass 1789-1810     ..     1733     ..     1810 

James  Wilson,  Penn 1789-1798     ..     1742     ..     1798 

John  Blair,  Va 1789-1^96     ..     1732     ..     1800 

Robert  H.  Harrison,  Md 1789-1789     . .     1745     . .     1790 

James  Iredell,  N.  C. 1790-1799     ..     1750     ..     1799 

Thomas  Johnson,  Md 1791-1793     ..     1732     ..      1819 

William  Paterson,  N.  J 1793-1806     . .     1743     . .     1806 

Samuel  Chase,  Md 1796-1811     ..      1741     ..     1811 

Bushrod  Washington,  Va 1798-1829     ..     1759     ..     1829 

Alfred  Moore,  N.  C 1799-1804     ..     1755     ..     1810 

William  Johnson,  S.  C 1804-1 834     1834 

Brockholst  Livingston,  N.  Y 1806-1823     ..     1757     ..     1823 

Thomas  Todd,  Ky 1807-1826     1826 

Joseph  Story,  Mass 1811-1845     ..     1779     ..     1845 

Gabriel  Duvall,  Md 1811-1835     ..     1751     ..     1844 

Smith  Thompson,  N.  Y 1823-1845     ..     1767      ..     1845 

Robert  Trimble.  Ky 1826-1829     1829 

John  McLean,  Ohio 1829-18G1      ..      1785      ..      1861 

Henry  Baldwin,  Penn 1830-1843     ..      1779     ..      1846 

James  M.  Wayne,  Ga 1835-1867      ..     1786     ..     1867 

Philip  P.  Barbour,  Va 1836-1841      1841 

John  Catron.  Tenn.. , 1837-1865     ..     1786     ..     1865 

John  McKinley,  Ala 1837-1852      1852 

Peter  V.  Daniel,  Va 1841-1800     ..     1785     ..     1860 

Samuel  Nelson,  N.  Y 1845- 1792     

Levi  Woodbury,  N.  H 1845-1851     ..     1790     ..     1851 

Robert  C.  Grier,  Penn 1S46- 1794     

Benjamin  R.  Curtis,  Mass 1851-1857      ..     1809     

James  A.  Campbell,  Ala 1853-1856     ..      1802      

Nathan  Clifford,  Me 1858- 1803     

Noah  H.  Swayne,  Ohio 1 862- 1805     

Samuel  F.  Miller,  Iowa 1862- 1816     

David  Davis.  Illinois 1862- 1815     

Stephen  J.  Field,  California 1863- 1817     

Efforts  were  made  at  the  Supreme  Court  clerk's  office,  and  at  the 
State  Department,  to  obtain  more  accurate  information  as  to  the 
respective  dates  of  service,  but  without  success. 

198.  The  "COMPENSATION"   of  Judges  is  at  present  as  fol- state  the 
lows :  Chief- Justice,  six  thousand  five  hundred  dollars  ;  Associate  present 
Justices,  six  thousand  dollars  each.      10   Stat.   655;    Brightij'*  gJJ J*M 
Dig.  819.     The  District  Judges'  salaries  vary  from  three  thousand 
five  hundred  dollars  to  five  thousand  five  hundred  dollajrs. 

This  compensation  prohibits   the  imposition  of   a  tax  upon  a  Can  it  be 
judge's  salary.    Commonwealth  v.  Mann,  5  W.  &  S.  415.     Congress  taxed? 
may  give  the  Circuit  Court  original  jurisdiction  in  any  case  to 
which  the  appellate  jurisdiction  extends.     (Osborn  v.  The  Bank  of 
the  United  States,  9  Wh  821.)     Jones  v.  Seward,  41  Barb.  272-3. 


194 


JUDICIAL    POWERS,    199.      [Art.  111.,  Sec.  2, 


To  what 
does  the 
judicial 
power 
extend  ? 

199-200. 


Distinguish 
the  judicial 
from  legisla 
tive  power? 
14.  71,  13S, 
165,  211. 


27,  39,  40. 


And  see  United  States  v.  Bevans,  3  Wheat.  336.  When 
the  Act  of  Congress  directs  the  transfer  of  the  case,  wo 
have  nothing  to  do  with  the  validity  of  the  law  as  a  defense  to  the 
action.  (Story's  Const,  ch.  38,  §  903,  906,  et  seq.;  Martin  v. 
Hunter,  1  Wh.  304;  Cohens  v.  Virginia,  6  Wh.  364;  Osborn 
v.  The  Bank  of  the  United  States,  9  Wh.  738.)  Jones  v.  Seward, 
41  Barb.  273.  As  to  what  cases  will  be  transferred  from  the  State 
to  the  federal  court,  see  1  Brightly's  Dig.  Laws  U.  S.  p.  128, 
§  19,  notes  d,  e,  g,  and  h;  Smith  v.  Rines,  2  Sumn.  338;  Wilson 
v.  Blodget,  4  McLean,  363  ;  Hubbard  v.  The  Northern  R.  R.  Co.  25 
Vt.  715,  719;  Welch  v.  Tenent,  4  Cal.  203;  Ladd  v.  Tudor,  3 
W.  &  M.  325.  No  suit  can  be  removed  in  which  a  State  is  a 
party.  New  Jersey  v.  Babcock,  4  Wash.  C.  C.  341.  After  the 
proper  steps  for  removal,  any  subsequent  proceedings  in  the  State 
courts  are  illegal.  Gordon  v.  Longest,  16  Pet.  97;  1  Kent's 
Com.  295. 

SEC.  II. — [1.]  The  judicial  power  shall  extend  to  all 
cases,  in  law  and  equity,  arising  under  this  Constitu 
tion,  the  laws  of  the  United  States,  and  treaties  made, 
or  which  shall  be  made  under  their  authority  ;  to  all 
cases  affecting  ambassadors,  other  public  ministers, 
and  consuls  ;  to  all  cases  of  admiralty  and  maritime 
jurisdiction ;  to  controversies  to  which  the  United 
States  shall  be  a  party  ;  to  controversies  between  two 
or  more  States;  between  a  State  and  citizens  of 
another  State  ;  between  citizens  of  different  States ; 
between  citizens  of  the  same  State,  claiming  lands 
under  grants  of  different  States,  and  between  a  State, 
or  the  citizens  thereof,  and  foreign  States,  citizens 
or  subjects. 

199.  JUDICIAL  POWER,  as  contradistinguished  from  legislative 
power  and  executive  power,  is  the  power  to  hear  and  determine 
~  a'^  tne  cases  °f  ^aw  an(*  ^act;  which  arise  between  the  government 
and  parties,  or  between  parties,  under  this  Constitution,  the  law 
of  nations,  and  the  laws  and  treaties  of  the  United  States,  which 
shall  be  legally  brought  within  the  cognizance  and  jurisdiction  of 
any  of  the  courts  or  judicial  tribunals  established  under  the  Consti 
tution.  It  was  intended  to  bo  a  separate  department  of  the 
government,  possessing  all  the  "judicial  power"  of  the  national 
government  except  upon  the  single  jurisdiction  of  impeachment. 
Not  a  power  to  control  the  other  departments  of  the  government 
in  their  official  actions,  but  to  act  independently  of  them  under  the 
Constitution  and  laws. 

But  the  judicial  power  does  not  extend  to  all  questions  which 
arise  under  the  Constitution,  laws,  and  treaties,  because  many  of 


Cl.  1.]  JUDICIAL   POWERS,    199.  195 

these  aro  political,  and  have  to  be  solved  by  other  departments  of 
the  government.     Thus: — 

"  TREATIES." — "Where  the  title   to  property  depended  on   tho  Has  the 
question,  whether  the  land  was  within  a  cession  by  treaty  to  the  Jiu]ic|ary 
United  States,  after  our  government,  legislative   and  executive.  Btruction  of 
had  claimed  jurisdiction   over  it,  the  courts   must  consider  that  all  treaties, 
question  as  .1  political  one,  the  decision  of  which  having  been  made  or  what  i3 
in  this  manner,  they  must  conform  to  it.     (Foster  v.  Neilson.  2  Pet.  J-g  ^ 
309;   United   States   v.    Arredondo,  6  Pet.   711,    712;    Garcia  v. 
Leo,  12  Pet.  520,  521 ;  Williamson  v.  Suffolk  Ins.  Co.,  13  Pot.  441, 
920.)     Luther  v.  Borden,  7  How.  56. 

So  the  protection  of  the  Indians  in  their  possessions  seems  to  be  As  to  tho 
a  political  question.     (Cherokee  Nation  v.  Georgia,  5  Pet.  20.)    Id.  jjjj"1* 

So  as  to  State  boundaries,  unless  agreed  to  be  settled,  as  a  judicial  su\to  boun- 
question.     (Rhode   Island   v.   Massachusetts.    12    Pet.    736,   738;  claries  ?_ 
Garcia  v.  Lee.    Id.  520.)     Id.     And  they  have  agreed  upon  this        1S)5« 
court  to  settle  such  questions.     "Rhode  Island  v.  Massachusetts,  1 2         2?4- 
Pet.  737.     And  so  of  foreign  treaties,  as  to  confiscations.    (Barclay 
v.    Russel,  3  Ves.  424,  434.)    Id.     And  generally  as  to  political 
treaties.     (Carnatic  v.   The   East  India  Company,  2  Ves.  jr.   56.) 
Luther  v.  Borden,  7  How.  56.     So  as  to  which  must  be  regarded 
as  the  rightful  government  abroad  between  two  contending  parties,  As  to  revo- 
is  never  settled  by  tho  judiciary,  but  is  left  to  the  general  govern-  lutions? 
ment.     (The   Cherokee  Nation  v.  Georgia,  5  Pet.  50 ;  Williams  v. 
Suffolk  Ins.  Co.  13  Pet.  419;  Rose  v.  Himley,  4  Cr.  241;  United 
States  v.   Palmer,  3  Wheat.  634 ;  Gilston  v.  Hoy t,  Id.   246 ;  The 
Divina  Pastora,  4  Wheat.  64.)     Luther  v.  Borden,  7  How.  56,  57. 

The  same  rule  has  been  applied  in  a  contest  as  to  which  is  the  283, 235. 
true  Constitution,  between  two,  or  which  possesses  the  true  legis 
lative  power  in  one  of  our  own  States.     (Scott  v.  Jones,  5  How. 
374.)     Luther  v.  Borden,  7  How.  57. 

Congress  is  the  legislative  department  of  the  government;   the        110. 
President  is  the  executive  department.     Neither  can  be  restrained        195. 
in  its  action  by  the  judicial  department ;  though  the  acts  of  both, 
when  performed,  are,  in  proper  cases,  subject  to  its   cognizance. 
Mississippi  v.  Johnson,  4  Wall.  500. 

A    CASE    arises,    within    the    meaning    of    the    Constitution,  Define  a 
whenever  any  question  respecting  the  Constitution,  laws,  or  treaties  ease? 
of  the  United  States,  has  assumed  such  a  form,  that  the  judicial  ]|g  210 
power  is  capable  of  acting  on  it.     Osborn  v.  United  States  Bank,  9  2t>3,'  264*. 
Wh.  819;  Jones  v.  Seward,  41  Barb.  272;  Curtis'  Com.  §  7; 
partc  Milligan,  4  Wallace,   112,   114.     LAW,   in   this   article,   and 
COMMON  LAW.  in  the  seventh  amendment,  mean  the  same  thing; 
that  is,  not  merely  suits  which  the  common  law  recognized  among 
its  old  and  settled  proceedings,  but  suits  in  which  legal  rights  were 
to  be  ascertained  and  determined   in   contradistinction   to  those- 
where  equitable  rights  are  administered.     (Parsons  v.  Bedford,  3 
Pet.  447.)     Fenn  v.  Holmes,  21  How.  486  (cites  Strother  v.  Lucas, 
6  Pet.  768;   Parish  v.  Ellis,  16  Pet.  453-4  ;  and  Bennett  v.  Butter- 
worth,  11  How.  669).     And    see   Sheirburne  v.   De   Cordova,  24 
How.  423.     Or,  where  the  proceeding  is  in  the  admiralty.     Parsons 
v.  Bedford,  3  Pet.  447.;    Robinson  v.  Campbell,  3  Wh.  212.     Tlio 


196 


JUDICIAL  CASES,    200,    201.    [Art.  Ill,  Sec.  2, 


action  of  ejectment,  or  trespass  to  try  title,  cannot  be  supported  on 
the  common-law  side  of  the  United  States  Court,  upon  the  inchoate 
titles  recognized  by  the  State  statutes.  Fenn  v.  Holmes,  21  How. 
481 ;  Hooper  v.  Scheimer,  23  Id.  249;  Sheirburne  v.  De  Cordova, 
24  Id.  423. 

This  class  of  cases  is  without  reference  to  who  are  the  parties. 
Curtis'  Com.  §  3-17.  See  Van  Ness  v.  Packard,  2  Pet.  137,  144; 
Wheaton  v.  Peters,  8  Pet.  591 ;  Terrett  v.  Taylor,  9  Cr.  43  ;  Town 
of  Pawlet  T.  Clarke,  Id.  292. 

When  con-  But  a  "  CASE  "  can  only  be  considered  when  the  subject  is  sub- 
Bidered  ?  mitted  to  it  by  a  party  who  asserts  his  rights  in  the  form  prescribed 
by  law.  (Osborn  v.  Bank  of  the  United  States,  9  Wh.  819.)  Curtis' 
Com.  §  7.  And  see  Robinson  v.  Campbell,  2  Wh.  212,  221,  223; 
Parsons  y.  Bedford,  3  Pet.  433,  446,  447.  That  is,  there  must  bo  a 
judicial  proceeding.  Curtis'  Com.  §  10,  11 ;  Osborn  v.  Bank  of 
United  States,  9  Wheat.  738,  819,  821. 

The  record  must  show  that  the  Constitution  or  some  law  or 
treaty  was  drawn  in  question.  (Lawter  v.  Walker,  12  How.  149; 
Mills  v.  Brown,  16  Pet.  525.)  Railroad  Co.  v.  Rock,  4  Wall.  180. 

And  under  the  25th  section  of  the  judiciary  act,  the  decision  must 
be  against  the  validity  of  the  act,  treaty,  or  Constitution ;  not  in 
favor  of  it.  Ryan  v.  Thomas,  604. 

20®.  BY  "CASES  IN  EQUITY,"  are  to  be  understood  suits  in 
which  relief  is  sought  according  to  the  principles  and  practice  of  the 
equity  jurisdiction  as  established  in  English  jurisprudence.  Robin 
son  v.  Campbell,  3  Wh.  222-3;  United  States  v.  Howland,  4  Id. 
108 ;  Lanman  v.  Clark,  2  McLean,  570-1 ;  Lanman  v.  Clark,  4  Id. 
18;  Gordon  v.  Hobart,  2  Sumn.  401;  Pratt  v.  Northam,  5  Mas. 
95 ;  Cropper  v.  Coburn,  2  Curtis'  C.  C.  465.  And  see  1  Curtis' 
What  is  the  Cora.  §  7-9,  19a-30.  The  true  test  of  equity  jurisdiction  is, 
true  test  of  whether  there  is  a  plain,  adequate,  and  complete  remedy  at  law  in 
the  same  courts.  United  States  v.  Howland,  4  Wheat.  108; 
Boyce's  Executors  v.  Grundy,  3  Pet.  210,  215  ;  Gould  v.  Gould,  3 
Story  R.  516,  536;  Gaines  v.  Chew,  2  How.  619,  645;  Williams  v. 
Benedict,  8  How.  107  ;  Curtis'  Com.  §  23-38.  Not  according  to 
the  practice  of  the  State  courts,  but  the  distinctions  in  England. 
Robinson  v.  Campbell,  3  Wheat.  222,  223. 

2O1 .  A  CASE  is  said  to  "ARISE  "  under  the  Constitution  or  laws 
of  the  United  States,  whenever  its  correct  decision  depends  on  the 
construction  of  either.  Coheu^  v.  Virginia,  6  Wh.  379.  A  bill  in 
equity  to  enforce  a  specific  performance  of  a  contract  to  convey  a 
patent,  is  not  a  "  case  arising  under  the  laws  of  the  United  States  " 
as  to  patents,  so  as  alone  to  give  jurisdiction  to  its  Courts.  Nes- 
mith  v.  Calvert,  1  W.  &  M.  34.  A  case  in  admiralty,  is  not  a  case 
arising  under  the  Constitution,  but  the  jurisdiction  is  as  old  as 
admiralty  itself.  The  Amer.  Ins.  Co.  v.  Canter,  1  Pet.  545.  This 
article  is  reconcilable  with  the  5th  amendment,  and  the  several  ju 
diciary  acts  on  the  subject  of  trial  by  jury.  Parsons  v.  Bedford,  3 
Pet.  444;  Story's  Const.  §  1645;  Chisholm  v.  Georgia,  2  Dall.  419, 
433,  437  ;  S.  C.,  635,  640,  642. 

A  "CASE "is  a  controversy  between  parties  which  has  taken  a 


Define  a 
case  in 
equity? 
199. 


equity  juris 
diction? 


"When  does 
a  case 
arise? 


108. 


255-259. 


What  is 
ft  case  ? 


Cl.  1.]          AMBASSADOES — ADMIEALTY,    202,    203.  197 

shape  for  judicial  decision.  Marshall's  speech,  5  Wheat.  App.  1 6,  199. 
17  ;  Osborn  v.  Bank  of  United  States,  9  Wheat.  819.  A  CASE  is  a  suit 
in  law  or  equity,  instituted  according  to  a  regular  course  of  judicial  121-p.  124. 
proceedings ;  and  when  it  involves  any  question  arising  under  the 
Constitution,  treaties,  or  laws  of  the  United  States,  it  is  within  the 
judicial  power  conlided  to  the  Union.  (See  1  Tuck.  Black.  Com. 
418-420;  Madison's  Virginia  resolutions  and  report,  January,  1800, 
p.  28;  Marbury  v.  Madison,  1  Cr.  137,  173,  174;  Owing  v.  Nor 
wood,'  5  Cr.  344;  2  Elliot's  Debates,  418,  419;  Martin  v.  Hunter, 
1  Wheat.  304;  Cohens  T.  Virginia,  6  Wheat.  264,  378-392.) 
Story's  Const.  §  1647-1656.  It  consists  of  the  right  of  the  one 
party  as  well  as  the  other.  Cohens  v.  Virginia,  6  Wheat.  379. 

202.  u  IN   ALL  CASES  AFFECTING  AMBASSADORS,   OTHER  PUBLIC  How  are 

MINISTERS  AND  CONSULS." — These  classes  are  usually  distinguished  foreign 
in  diplomacy  : — 1.  AMBASSADORS,  who  are  the  highest  order,  who  are  tfve's  dassi- 
considered  as  personally  representing  their  sovereigns ;  2.  ENVOYS  fied  ? 
EXTRAORDINARY  AND  MINISTERS  PLENIPOTENTIARY  ;  3.  MINISTERS  180, 181, 210. 
HESIDENT,  AND    MINISTERS   CHARGE  D'AFFAIRES.     Mere  charges 
d'affaires  are  deemed  of  still  lower  rank.     Dr.  Liebers  Encyc.  Am. 
Art.   MINISTERS,    FOREIGN:   Vattel,  B.  4  chap.  6,  §  71-74.     And 
see   Schooner   Exchange   y.    McFadden,  7    Cr.   11 G,  138;  Story's 
Const.  §  1658,  3d  ed.  494.  note  1.     Whatever  their  rank  and  grade 
public  ministers  of  every  class  are  the  immediate  representatives 
of  their  sovereigns.     Id. 

The   federal   courts  have  jurisdiction    of  all   suits  "  affecting "  Is  it  ncces- 
public  ministers,  although  they  may  not  be  parties  to  the  record.  s£r.v  ftey 
Osborn  v.  United  States  Bank,  9  Wh.  854-5.     See  United  States  v.  JJ^JJ  to 
Ortega,  11  Wh.  467  ;  United  States  v.  Ravara,  2  Dall ;  297,  S.  C.,  4  the  record? 
Wash.  C.  C.  531.     The  recognition  of  the  executive  of  the  United 
States  is  conclusive  as  to  the  public  character  of  the  party.  Dupont 
v.    Pichon,  4    Dall.  321  ;  United   States   v.   Ortega,  4  Wash.  C.  C. 
531 ;  Curtis'  Com.  §  31-35  ;  Story's  Const.  §  1660-1662,  notes  to 
3ded. 

203.  "  ADMIRALTY  AND  MARITIME  JURISDICTION." — The  cases  what  is 
are: — 1.  Captures  made  jure   belli  upon   certain  waters,   and   all  admiralty- 
questions    of    prize   and   other   incidents   arising   therefrom ;    2.  tilnJ^uris- 
Crimes  and  offenses  against  the  laws  of  the  United  States  com- diction? 
mitted  upon  the  same  waters ;    3.  Civil  acts,  torts,  and  injuries  no-116. 
committed  upon  the  same  waters  not  under  claim  or  color  of  exer 
cising  the  rights  of  war,  as  assaults  and  personal  injuries;  col 
lisions  of  ships,  illegal  seizures,  or  depredations  upon  property;         . "- ' 
illegal   dispossession   of  ships,   seizures  for   breaches  of  revenue 

laws,  and  salvage  services.  Curtis'  Com.  §  37  ;  and  see  same, 
§  38-52;  Marshall's  Speech,  5  Wheat.  App.  16;  Martin  v.  Hun 
ter,  1  Wheat.  335;  Story's  Const.  §  1666,  1669,  3d  ed.,  note  1; 
Abbott  on  Shipping,  P.  2,  chap.  4,  pp.  132-138,  and  notes  to 
American  editions ;  1  Kent's  Com.  Lect.  XVII.,  pp.  342-352,  and 
notes.  But  the  torts  must  be  upon  the  navigable  waters,  and  not 
partly  on  land.  (Thomas  v.  Lane,  2  Sumner,  9  ;  The  Huntress, 
Davies,  85 ;  United  States  v.  MoGill,  1  Wash.  C.  C.  463  ;  s.  C.,  4 
Dall.  346;  Plumer  v.  Webb,  4  Mas.  383,  384,)  The  Plymouth,  3 
Wall.  333,  334. 


198  ADMIRALTY,    203.  Art.  III.,  Sec.  2., 

How  far  The  Admiralty  clause  embraces  what  was  known  and  under- 

fortadtotion   stooci  m  tbe  United  States,  as  the  admiralty  and  maritime  juris- 

extend'         diction,  at  the  time  when  the  Constitution  was  adopted.     Gkmesee 

Chief  v.  Fitzhugh,  12  How.  443;  New  Jersey  Steam  Navigation 

Co.  v.  Merchants'   Bank,  6   Id.   244;   Waring  v.  Clark,  8  Id.  441; 

Tunno  v.  The  Betsina,  5  Am.  L.  R.,  408  :   The   Huntress,  Davies, 

83.     And  also  extends  the  power  so  as  to  cover  every  expansion 

of  jurisdiction.     Waring  v.  Clarke,  5  How.  458. 

"Why  was  The  word  "  maritime  "  was  added  to  guard  against  any  narrow 
maritime  interpretation  of  the  preceding  word  "admiralty."  Story's  Const 
§  1666.  In  Hine  v.  Trevor,  4  Wall.  561-569,  Mr.  Justice  Miller 
reviewed  the  steamboat  Thomas  Jefferson,  10  Wh.  428;  The 
steamboat  Orleans,  11  Pet.  175;  Warring  v.  Clark,  8  How.  441; 
The  Genesee  Chief,  12  How.  457  (which  overruled  the  finst  two); 
Fritz  v.  Bull,  12  How;  The  Moses  Taylor,  4  Wall.  411;  The 
statute  of  1845,  5  St.  726;  of  1789,  1  St.  77,  and  deduced  the  fol 
lowing  rules  : — 

"What  was  1.  The  admiralty  jurisdiction  is  not  limited  to  tide  water,  but 
anddiSm  covers  tho  entire  navigable  waters  of  the  United  States;  2.  The 
o '  admiralty  original  jurisdiction  in  admiralty,  exercised  by  the  district  courts, 
jurisdic-  by  virtue  of  the  act  of  1789,  is  exclusive,  not  only  of  the  federal 
lion?  courts,  but  of  the  State  courts  also;  3.  The  jurisdiction  of  admi 

ralty  causes  arising  on  the  interior  waters  of  the  United  States, 
other  than  the  lakes  and  their  connecting  waters,  is  conferred  by 
the  Act  of  September  24th,  1789  ;  4.  The  admiralty  jurisdiction 
exercised  by  the  same  courts,  on  the  lakes,  and  the  waters  con 
necting  those  lakes,  is  governed  by  the  Act  of  3d  February,  1845; 
5.  The  Acts  of  the  State  legislatures,  which  virtually  give  admiralty 
remedies  on  the  navigable  rivers,  are  unconstitutional  and  void. 
4  Wall.  569. 

Since  the  case  of  the  Genesee  Chief  (12  How.  457),  navigable 
waters  may  be  substituted  for  tide-waters.  The  Plymouth,  3 
Wall.  34. 

Enumerate  The  jurisdiction  of  the  admiralty  courts  in  this  country,  at  the 
some  of  the  time  of  the  Revolution,  and  for  a  century  before,  was  more  exten 
sive  than  tho  high  court  of  admiralty  in  England.  Paschal's  An 
notated  Digest,  note  89  ;  The  Genesee  Chief,  12  How.  455.  This 
jurisdiction  extends  to  the  navigable  lakes  and  rivers  of  the 
United  States,  without  regard  to  the  ebb  and  flow  of  the  tides  of 
the  ocean.  Genesee  Chief  v.  Fitzhugh,  12  How.  443.  It  em 
braces  all  maritime  contracts,  wheresoever  the  same  may  be  made 
•  or  executed,  and  whatever  may  be  the  form  of  the  stipulations ; 
and  also  all  torts  and  injuries  committed  upon  waters  within  its 
jurisdiction.  De  Lovio  v.  Boit,  2  Gall.  398  ;  Gloucester  Ins.  Co.  v. 
Younger,  2  Curt.  C.  C.  322 ;  Philadelphia  <fe  Havre  de  Grace  Tow- 
boat  Co.  v.  Philadelphia,  Wilmington  &  Baltimore  Railroad  Co.  5 
Am.  L.  R.  280.  All  crimes  and  offenses  against  the  laws  of  the 
United  States.  Corfield  v.  Coryell,  4  Wash.  C.  C.  371;  Unite! 
States  v.  Bevans,  3  Wh.  336.  And  all  cases  of  seizures  for 
breaches  of  the  revenue  laws,  and  those  made  in  the  exercise  of 
the  rights  of  war.  The  Vengeance.  3  Ball.  297 ;  The  Sally,  2  Cr. 
406;  The  New  Jersey  Steam  Navigation  Co.  v.  Merchants'  Bank,  6 
How.  341  Another  class  of  cases,  in  which  jurisdiction  has 


01.  1.]       UNITED   STATES  AND   STATES,    204,  205.  199 

always  been  exercised  by  the  admiralty  courts  in  this  country,  but 
which  is  denied  in  England,  are  suits  by  ship-carpenters  and 
material-men,  for  repairs  and  necessaries  made  aud  furnished  to 
ships,  whether  foreign,  or  in  the  port  of  a  State  to  which  they  do 
not  belong,  or  in  the  home  port,  if  the  municipal  laws  give  a  lien 
for  the  work  and  materials.  Gardner  v.  The  New  Jersey,  1  Pet. 
Adm.  227  ;  Stevens  v.  The  Sandwich,  Id.  233,  n. ;  Zano  v.  The 
Brig  President,  4  Wash.  C.  C.  453;  The  Ship  Robert  Fulton,  1 
Paine,  620  ;  Davis  v.  A  New  Brig,  Gilp.  473  ;  The  General  Smith, 
4  Wh.  438;  Wick  v.  The  Samuel  Strong,  6  McLean,  590;  Curtis' 
Com.  §  36-52. 

The  jurisdiction  extends  to  the  seizure  of  cotton  upon  rivers  in  117, 118. 
the  States  in  rebellion.     Mrs.   Alexander's  Cotton,  2   Wall.  419. 
But  cotton  seized  upon  land  could  not  be  the  subject  of  lawful 
prize,  although  it  was  subject  to  capture,  notwithstanding  it  was 
private  property.     Id. 

201.  "CONTROVERSIES  TO  WHICH  THE  UNITED  STATES  SHALL  BE  Where  is 
A  PARTY." — 1.  The  jurisdiction  is  not  conferred  upon  any  particular  thejuris- 
court ;  Congress  must  therefore  designate  the  tribunal ;   2.  Cogni-  •w,-hen>°he 
zance  is  not  given  of  all  controversies,  but  only  of  some  ;  3.  "  Con-  United 
troversies  "  seem    to  embrace  only  civil  suits.     Cohens   v.  Vir-  States  is  a 
ginia,  6  Wheat.  264,  411,  412;  Story's  Const.  §  1674-1681;  Curtis'  party? 
Com.  §  56,  57. 

The  United  States  can  only  be  sued  in  cases  where  it  has  con-  When  can 
sented  to  be  sued  by  act  of  Congress.     Curtis'  Com.  §  57  ;  Story's  t,he  United 
Const.   §    1677,  1678.     As  in  suits   for  the  confirmation  of  land  j^jfj  bo 
grants  and  in  the  Court  of  Claims.     Curtis'  Com.  §  100-102. 

A  suit  against  the  President  to  prevent  the  enforcement  of  the 
reconstruction  laws,  was  held  to  be  a  suit  against  the  executive 
of  the  United  States,  and  dismissed  for  want  of  jurisdiction.  Mis 
sissippi  v.  Johnson,  4  WaD.  498.  Georgia  v.  Stanton,  6  Wall.  000. 

205.  "  To  CONTROVERSIES  BETWEEN  TWO  OR  MORE  STATES." 
— This  means  States  of  the  Union. 

This  clause  about  suits  between  States,  includes  a  suit  brought  what  may 
by  one  State  against  another,  to  determine  a  question  of  disputed  |>e  included 
boundary.     Rhode  Island  v.  Massachusetts,  12  Pet.  657  ;  Alabama  J^f,,^0 
v.  Georgia,  23   How.  510.     And  only  applies  to  those  States  that  State  I 
are  members  of  the  Uuion,  and  to  public  bodies  owing  obedience  s,  9,  223- 
and  conformity  to  its  Constitution  and  laws.     Scott  v.  Jones,  5  228. 
How.  377.     And  a  State  is  within  the  operation  of  this  clause  only 
when  it  is  a  party  to  the  record,  as  a  plaintiff  or  defendant,  in  its 
political  capacity.     Osborn  v.  United  States  Bank,  9  Wheat.  738; 
1  Curtis'  Com.  §  59,  63.    The  Cherokee  nation  is  not  a  State,  within 
the  meaning  of  the  Constitution,  either  foreign   or  domestic — nor 
had  it  the  right  to  sue  Georgia  before  the  Supreme  Court  of  the 
United  States.     The  Cherokee  Nation  v.  Georgia,  5  Pet.  1,   16- 
20. 

As  early  as  1792,  this  court  exercised  original  jurisdiction,  with 
out  any  further  legislation  than  the  act  of  1789.  (Brailsford  v. 
Georgia,  2  Ball  402,  415;  Oswald  v.  Georgia,  Ball.;  Chisholm 
v.  Georgia,  2  Dall.  419,  478 ;  New  Jersey  v.  New  York,  5  Pet. 


200 


STATES  AND   CITIZENS,  205«.  [Art.  TIL,  Sec.  2. 


Upon  whom  284 ;    Grayson   v.   Virginia,    3   Dall.    320.)     These    cases    settle 
^recess*!)6    ^iat  ^e  process  should  be  served  upon  the  chief  executive  and 
served8?  °     attorney-general  of  the  State.     Kentucky  v.  Ohio,  24  How.  96-7. 
Where  the  governor  sues  or  is  sued,  in  his  official  capacity,  if  is 
a  suit  by  or  against  the  State.     Id.  97,  99;  Governor  of  Georgia 
v.  Madrazo,  1  Pet.  110.     A  mandamus  is  an  ordinary  process  to 
which  a  State  is  entitled,  where  it  is  applicable.     (Kendall  v.  The 
United  States,  12  Pet.  615 ;  Kendall  v.  Stokes,  3  How.  100.)    Ken 
tucky  v.  Ohio,  24  How.  97-8. 

For  the  necessity  of  this  jurisdiction,  see  Federalist,  No.  80;  Kent's 
Com.  Lect.  14;  Chisholm  v.  Georgia,  2  Dall.  437-445;  Sergeant's 
Const.  Introduction,  11-16;  New  York  v.  Connecticut,  4  Dall.  3; 
Fowler  v.  Lindsay,  3  Dall.  411 ;  3  Elliot's  Debates,  281 ;  2  Elliot's 
Debates,  418;  Penn  v.  Lord  Baltimore, '1  Vesey,  444;  Story's 
Const.  §  80,  489,  1679-1681;  1  Chalm.  Annals,  480-490. 

The  jurisdiction  is  a  necessity  to  prevent  a  resort  to  the  sword. 
Story's  Const.  §  1681.  See  Ableman  v.  Booth,  21  How.  506; 
Curtis'  Com.  60-70. 

A  State  obtained  an  injunction  to  prevent  the  construction  of  a 
bridge  which  would  impede   the   navigation  of  the   Ohio  River. 
Pennsylvania  v.  Wheeling  &  Belmont   Bridge  Co.   13  How.  518. 
271,212.        The  llth  article  of  the  amendments  has  forbidden  suits  by  indi 
vidual  citizens  against  the  States. 

If  the  judicial  power  does  not  extend  to  all  controversies  between 
States,  it  excludes  none.  Rhode  Island  v.  Massachusetts,  12  Pet. 
657  ;  Curtis'  Com.  §  CO. 

Its  mere  interest  in  a  corporation  will  not  oust  the  jurisdiction, 
U.  S.  Bank  v.  Planters'  Bank,  9  Wheat.  904,  966  ;  Curtis'  Com. 
§  66.  See  also  Bank  of  the  Commonwealth  of  Kentucky  v.  Wistar, 
2  Pet.  318. 

It  seems  the  court  will  look  into  the  interest  of  the  State,  where 
it  claims  to  be  a  party.  Pennsylvania  v.  Wheeling  Bridge  Co.  13 
How.  518,  539;  Curtis'  Com.  §  70. 


205,  203. 
811,  271, 
272. 


Can  a 


2O5a.  "  BETWEEN  A  STATE  AND  THE  CITIZENS  or  ANOTHER 
STATE." — Before  the  eleventh  amendment  (1793),  it  was  held,  that 
this  authorized  suits  to  be  brought  against,  as  well  as  by  States, 
where  the  plaintiff  was  a  citizen  of  another  State.  Chisholm  v. 
Georgia,  2  Dall.  419-478;  Cohens  v.  Virginia,  6  Wheat.  406; 
Curtis'  Com.  §  60. 

But  this  power  of  a  citizen  to  sue  a  State  is  removed  by  the 
citizen  sno  a  eleventh  amendment.     For  the  history  and  object  of  the  amerid- 
271*272.        ment,  see  Cohens  v.  Virginia,  6  Wheat.  406  et  stq.:  Curtis'  Com. 
§  62.     But  where  a  State  recovers  a  judgment  against  a  citizen  a 
writ  of  error  will  still  lie.  Id. ;  Cohens  v.  Virginia,  6  Wheat.  409. 
When  is  a         A  State  is  within  the  operation  of  this  original  clause  of  the 
thSte  7i{bin  Constitution,  only  when  it  is  a  party  to  the  record,  as  plaintiff  or 
fjj        defendant,  in  its  political  capacity.     Osborn  v.  Bank  of  United 
States,  9  Wheat.  738 ;  Curtis'  Com.  §  63-65.     New  York  v.  Con 
necticut,  4  Dall.  3;  Story's  Const.  §  1680,  1681. 

Where  a  State  is  a  party  to  the  record,  the  question  of  jurisdic 
tion  is  decided  by  inspection.  Id. 

The  State  is  only  a  party  when  it  is  on  the  record  as  such. 


01.  1.]  CITIZEN'S    OF    STATES,    206.  201 

(Fowler  v.  Lindsay,  3  Ball.  411,  415;  S.  C.  1  Pet.  Com.  190,  191 ; 
New  York  v.  Connecticut,  4  Ball.  1-6 ;  United  States  v.  Peters,  5 
Cr.  115,  139;  1  Kent'3  Com.  Lect.  15,  p.  302.)  Story's  Const. 
§  1685. 

2O6.  "  CONTROVERSIES  BETWEEN  CITIZENS  OF  DIFFERENT  STATES."  Contro- 
— "CONTROVERSIES"    is    synonymous    with    civil  suits.      Curtis' v*™*es? 
Com.  §  73.     It  may  be  deduced :   1.  That  they  are  all  citizens  of  wJoari 
the  United  States,  who  are  domiciliated  in  a  State  ;  (Scott  v.  Sand-  citizens  of  a 
ford,  19   How.  393.)     2.  And  they  are  suits  where  one  party  is  as*ate' 
citizen  of  one  State,  and   the  other  a  citizen  of  another.     Curtis'  j£  jg^  220- 
Coin.  §  73.     The  situation  of  the  parties,  rather  than  their  char-  22-2. 
acters  determines  the  jurisdiction.     Id.     At  the  commencement  of  What  deter- 
the  suit.     Connoly  v.  Taylor,  2  Peters,  556,  564.  jSfidtoiEn! 

This  clause  does  not  embrace  cases  where  one  of  the  parties  is  What  docs 
a  citizen  of  a  territory,  or  of  the  Bistrict  of  Columbia.  Hartshorn  citizenship 
v.  Wright,  Peters  C.  C.  64  ;  Scott  v.  Jones,  5  How.  377 ;  Hepburn  fjjPjg 
v.  Elszey,  2  Cr.  445 ;  Corporation  of  New  Orleans  v.  Winter,  1  170,  220! 
Wh.  91 ;  G-assies  v.  Ballon,  6  Pet.  761;  1  Kent's  Com.  Lect.  17,  p.  274. 
360;  Story's  Const.  §  169,'J,  1694;  Curtis'  Com.  §  77.  Citizen- 
ship,  when  spoken  of  in  the  Constitution,  in  reference  to  the  juris 
diction  of  the  federal  courts,  means  nothing  more  than  resi 
dence.  Lessee  of  Cooper  v.  Gralbraith.  3  Wash.  C.  C.  546 ;  Gassies 
v.  Ballou,  6  Pet.  761;  Shelton  v.  Tiffin,  6  How.  163;  Lessee 
of  Butler  v-  Farnsworth,  4  Wash.  C.  C.  101.  But  a  free  negro 
of  the  African  race,  whose  ancestors  were  brought  to  this  country 
and  sold  as  slaves,  is  not  a  citizen  within  the  meaning  of  the 
Constitution,  nor  entitled  to  sue  in  that  character  in  the  federal  274. 
courts.  Scott  v.  Saridford,  19  How.  393-4.  But  see  the  Civil 
Rights  Bill,  note  6,  p.  55 ;  14  St.  p.  27,  §  1 ;  Paschal's  Annotated 
Bigest,  Art.  5382.  A  corporation  created  by,  and  transacting  busi 
ness  in  a  State,  is  to  be  deemed  an  inhabitant  of  the  State,  capable 
of  being  treated  as  a  citizen,  for  all  purposes  of  suing  and  being  222. 
sued.  Louisville  R.  R.  Co.  v.  Letson,  2  How.  497  ;  Marshall  v. 
Baltimore  &  Ohio  R.  R.  Co.  16  Id.  314;  Wheeden  v.  Camden  & 
Amboy  R.  R.  Co.  4  Am.  L.  R.  296.  The  judiciary  act  confines  the 
jurisdiction,  on  the  ground  of  citizenship,  to  cases  where  the  suit 
is  between  a  citizen  of  a  State  and  a  citizen  of  another  State  ;  and, 
although  the  Constitution  gives  a  broader  extent  to  the  judicial 
power,  the  actual  juiisdiction  of  the  circuit  courts  is  governed  by 
the  act  of  Congress.  Moffiit  v.  Soley,  2  Paine,  103;  Hubbard  v. 
Northern  R.  R.  Co.  25  Vt.  715.  So,  too,  in  the  same  act,  there 
is  an  exception,  that  where  suit  is  brought  in  favor  of  an  assignee, 
there  shall  be  no  jurisdiction,  unless  suit  could  have  been  brought 
in  the  courts  of  the  Uuited  States,  had  no  assignment  been  made. 
This  is  a  restriction  on  the  jurisdiction  conferred  by  the  Constitution; 
and  yet  this  provision  has  been  sustained  by  the  Supreme  Court 
since  its  organization.  Assignee  of  Brainard  v.  Williams,  4  Mc 
Lean,  122  ;  Sheldon  v.  Sill,  8  How.  441.  The  Constitution  has  de 
fined  the  limits  of  the  judicial  power,  but  has  not  prescribed  how 
much  of  it  shall  be  exercised  by  the  circuit  courts.  Turner  v. 
Bank  of  North  America,  4  Ball.  10;  Mclntyre  v.  Wood,  7  Cr.  506 ; 
Kendall  v.  Uuited  States,  12  Pet.  616;  Gary  v.  Curtis  3  How.  245. 
9* 


202 


CITIZENS    OF    STATES,    206.     [Art.  III.,  Sec.  2, 


How  must 
the  citizen 
ship  be 
averred  ? 


What  is 
the  extent 
of  the 
jurisdic 
tion  ? 


Can  a  corpo 
ration  bo  a 
citizen  ? 


It  is  well  understood  by  those  experienced  in  the  jurisprudence  of 
the  United  States,  that  Congress  lias  conferred  upon  the  federal 
courts  but  a  portion  of  the  jurisdiction  contemplated  by  the  Con 
stitution.  Clarke  v.  City  of  Jane.sville,  4  Am.  L.  R/593.  Tho 
plaintiffs  should  distinctly  aver  that  they  are  citizens  of  different 
States;  and  in  the  absence  of  such  averment,  the  judgment  will  be 
reversed  for  want  of  jurisdiction.  (Biugham  v.  Cabott,  3  Dall.  382  ; 
Jackson  v.  Ashton,  8  Pet.  1 4=8 ;  Capron  v.  Van  Noorden,  2  Cr. 
126;  Montalet  v.  Murray,  4  Cr.  46.)  Scott  v.  Sand  ford,  19  How. 
420.  Curtis'  Com.  §  79.  note  4.  But  if  the  citizenship  be  denied, 
it  should  be  by  plea  in  abatement,  or  it  should  otherwise  appear  in 
the  record.  Id.  See  1  Brightly's  Dig.  p.  126.  sec.  17,  and  notes 
thereon.  The  Constitution  of  the  Confederate  States  omitted  this 
jurisdiction.  Paschal's  Annotated  Dig.  p.  92.  In  other  respects  it 
corresponded  to  this  section  and  the  eleventh  amendment.  Id. 

The  citizenship  must  be  expressly  averred,  or  the  facts  which 
constitute  it  must  be  set  forth.  (Turuer  v.  Bank  of  North  America, 
4  Dall.  8  ;  Montalet  v.  Murray,  4  Cr.  46 ;  Bailey  v.  Dozier,  6  How. 
23.)  Curtis'  Com.  §  78. 

Seethe  Judiciary  Act  of  September  24.  1789,  1  St.  78;  1  Bright 
ly's  Digest,  p.  126  and  notes. 

The  Judiciary  Act  of  1789  limited  jurisdiction  of  national  courts 
so  far  as  they  are  determined  by  citizenship,  "to  suits  between 
a  citizen  of  the  State  in  which  the  suit  is  brought  and  a  citizen  ol 
another  State,"  and  except  in  relation  to  revenue  cases  this  limi 
tation  remains  unchanged.  Ins.  Co.  v.  Ritchie,  5  Wall.  542.  In 
consequence  of  nullification  the  jurisdiction  was  extended  to  "all 
cases  in  law  or  equity  arising  under  the  revenue  laws  of  the 
United  States  for  which  other  provisions  have  not  already  been 
made."  (4  Stat.  632.)  Id.  And  by  this  act  many  suits  brought  in 
the  State  courts  were  removed  into  the  circuit  courts  (Elliott  v. 
Swartwout,  10  Pet.  137  ;  Bend  v.  Hoyt,  13  Pet.  267);  Ins.  Co.  v. 
Ritchie,  5  Wall.  542.  The  fiftieth  section  of  the  Internal  Revenue  Act 
of  1854  extended  the  act  of  1833  to  all  cases  arising  under  the  laws 
for  the  collection  of  internal  duties.  (12  Stat.  241.)  Id.  But  the 
act  of  I860  repealed  the  fiftieth  section  aforesaid,  without  any 
saving  of  such  causes  as  were  then  pending,  and  said  that  "  the 
act  of  1833  shall  not  be  so  construed  as  to  apply  to  cases  arising 
under  act  of  1864,"  &c.  This  ousted  jurisdiction  in  the  causes 
then  pending.  Id.  When  the  jurisdiction  of  a  cause  depends 
upon  a  statute,  the  repeal  of  which  takes  away  the  jurisdiction,  or 
it  is  prohibited  by  a  subsequent  statute,  it  can  no  longer  be  exer 
cised.  (Rex  v.  Justices  of  London,  3  Burrow,  1456 ;  Norris  v. 
Crocker,  13  How.  229.)  Ins.  Co.  v.  Ritchie,  5  Wall.  544.  But 
where  the  case  would  be  removable  under  the  new  provision,  and 
it  is  the  opinion  of  the  circuit  judge  that  it  ought  to  be  retained, 
the  jurisdiction  is  not  lost.  City  of  Philadelphia  v.  Collector,  4 
Wall  720-30. 

As  respects  the  proof  of  the  residence  or  dorniciliation  to  consti 
tute  citizenship,  see  Shelton.  v.  Tiffin,  6  Ho\v.  1G3,  185 

A  corporation,  whose  members  are  citizens  of  a  different  State 
from  the  other  party,  is  a  citizen  of  a  different  State.  Hope  lus. 


01.  1.]  CITIZENS— ALIENS,   207-209.  203 

Co.  v.  Boardman.  5  Cr.  57 ;  Bank  of  United  States  v.  Devaux,  5  207,  220,  221 
Or.  61 ;  United  States  v.  Planters'  Bank,    9  Wheat.  410 ;  Story's 
Const.  §    1695;     Curtis'   Cora.  §  76,  78.    The   doctrine   is   to   be 
extended  to  its  creation  and  place  of  business.     The  Commercial 
&  Railroad  Bank  of  Vicksburg  v.  Slocomb,  14  Pet.  60. 

207.  "  BETWEEN    CITIZEN'S    OP    THE    SAME    STATE    CLAIMING  What  is  a 
LANDS  UNDER  GRANTS  OF  DIFFERENT  STATES." — A  grant  of  land  gntnt  ? 
is  a  title  emanating  from  the  sovereignty  of  the  soil. 

Cases  of  grants  made  by  different  States  are  within  the  jurisdic-  When  aro 
tion,  notwithstanding  one  of  the   States,  at  the  time  of  the  first  £ra.nts  by 
grant,  was  part  of  the  other.     Town  of  Pawlet  v.  Clark,  9  Cr.  292.  sJJ^af  * 
It  is  the  grant  which  passes  the  legal  title;  and  if  the  controversy 
is  founded  upon  the  conflicting  grants  of  different  States,  the  fed 
eral  courts  have  jurisdiction,  whatever  may  have   been  the  prior 
equitable  title  of  the  parties.     Colson  v.  Lewis,  2  Wh.  377.     Not 
withstanding  one  State  may  have  originally  covered  the  territory 
of  both.     The  question  is,  have  the  grants  been  made  by  different 
States?     Id.;  Curtis'  Com.  §80. 

2O§.  "  CONTROVERSIES   BETWEEN  A  STATE   OR  THE   CITIZENS  205, 205<t, 

THEREOF,    AND     FOREIGN     STATES,    CITIZENS,    OR   SUBJECTS." — This  ^J- 

was  intended  to  give  cognizance   to  the  federal  judiciary  where  the  object  of 
foreign  States,  or  individual  foreigners,  are    parties.     See  Chappe-  this  provi- 
delaine  v.  De  Chenaux,  4  Cr.  306,  308 ;  Brown  v.  Strode,  5  Cr.  303.  sion? 

An  Indian  tribe,  or  nation,  within  the  United  States,  is  not  a  Is  an  Indian 
"  foreign    State,"  within  the   meaning  of  this   clause.     Cherokee  tril>?  a 
Nation  v..  Georgia,  5  Pet.  1.     See  this  case  for  a  definition  of  the  slatlf?1 
relations  of  the  Cherokees,  as  a  dependent  subordinate  State.    The 
very  term  "nation,"  so  generally  applied  to  them,  means  "a  peo-         91, 
pie  distinct  from  others."  Worcester  v.  Georgia,  6  Pet.  619. 

209.  "  FOREIGN  CITIZENS  OR  SUBJECTS." — If  the  party  to  the  What  aliens 
record  be  an  alien,  he  is  within  this  clause,  whether  he    sue    incaasue? 
his  own  right,  or  as  trusr,ee,  if  he  has  a  substantive  interest  as  a 
trustee.     Chappedelaine  v.  De  Chenaux,  4  Cr.  306.     And   if  the 
nominal  plaintiff,  although  a  citizen,  sue  for  the  use  of  an  alien, 
who  is  the  real  party  in  interest,  the  case  is  within  the  jurisdic-  Suppose  a 
tion.     Browne  v.  Strode,  5  Id.  303.    A  foreign  corporation  is  an  I10I?lin.^ 
alien  for  this  purpose.     Society  for  the  Propagation  of  the  Gospel  Jie'SJ  an 
v.  Town  of  New  Haven,  8  Wh.  464.     Possibly  enlarged  to  creation  alien  ? 
and  residence.     Commercial  &  Railroad  Bank  of  Vicksburg  v.  Slo-  206,  220,  221. 
comb,  14  Pet.  60;  Curtis'  Com.  §  81. 

The  opposite  party  must  be  a  citizen,  and  this  must  appear  from  Is  there 
the  record.     Jackson  v.  Tweutyman,  2  Pet.  136.  where  both 

A  mere  declaration  of  intention  to  become  a  citizen,  under  the  JJ^ttea  aro 
naturalization  laws,  is  not  sufficient  to  prevent  an  alien  from  being  aliens? 
regarded  as  a  foreign  subject,  within  the  meaning  of  this  clause. 
Baird  v.  Byre,  3  Wall.  Jr. 

An  alien  is  a  stranger  born;    a   person   born  in   another   or  6, 18, 93, 220. 
foreign  country,  as  distinguished  from  a  native  or  natural  born  who  arc 
citizen  or  subject.     In  English  law,  born  out  of  the  legiance  or  aliens? 
allegiance  of  the  king.      Co.  Litt.  §  128,   129ci;  7  Co.  31  ;   1  Bl. 
Com.    366,    373;    2    Steph.    Com.   426-429.     In    American    law, 


204 


JURISDICTION,    210.  [Art.  III.,  Sec.  2, 


Jl.ver 

estate? 


What  are 
the  aliens' 
rights  to 
take  and 
hold? 


274.        one  born  out  of  the  jurisdiction  of  the  United  States ;  2   Kent'3 

Com.  50 ;   Burrill's  Law  Die.,  ALIEN". 

What  are          At  common  law  an  alien  cannot  maintain  a  real  action  or  one  for 
the  rights  of  the  recovery  of  real  estate.     (Co.  Litt.  129 ;  Shepherd's  Touchstone, 
204;  Roscoe  on  Real  Actions,  197;  Littleton,  §  198.)     White  v. 
Sabariego,  23  Tex.  246. 

And  see  Jones  v.  McMasters,  20  How.  8,  20,  21 ;  Paschal's  An 
notated  Digest,  notes  147-150,  237-240;  1168-ll70a,  and  the 
numerous  cases  upon  the  rights  of  aliens  there  cited.  Lanfear  v. 
Hunly,  4  Wall.  209;  McDonough  v.  Millandon,  3  How.  707; 
Semple  v.  Hagar,  4  Wall.  433,  434;  1  Daniel,  ch.  53;  Bayes  v. 
Hogg,  1  Hayw.  485;  Orser  v.  Hoag,  3  Hill,  79. 

But  an  alien  may  take  lands  and  may  hold  them  against  every 
person  except  the  king,  and  against  the  king  until  inquisition  of 
office.  And  if  the  alien  be  naturalized,  before  seizure  by  the  gov 
ernment,  the  alien's  title  vests  absolutely,  and  by  relation  relates 
back  to  the  date  of  the  purchase.  Fairfax  v.  Hunter,  7  Cr.  603  ; 
Cox  v.  Mcllvaine,  2  Cond.  86;  Chirac  v.  Chirac,  2  Wheat.  259; 
Hughes  v.  Edwards,  9  Wheat.  489;  Carneal  v.  Banks,  10  Wheat. 
181 ;  Jackson  v.  Clarke,  3  Wheat.  1 ;  Craig  v.  Leslie,  3  Wheat. 
563,  589;  Craig  v.  Radford,  3  Wheat.  594;  Orr  v.  Hodgson,  4 
Wheat.  453;  Fox  v.  Southack,  12  Mass.  148;  Jackson  v.  Adams, 
7  Wend.  376;  Jackson  ex  dem.  Culverhouse  v.  Beach,  1  John's 
Cases.  399;  S.  C.  4  Johns.  75;  Bradwell  v.  Weeks,  1  Johns.  206; 
Moore  v.  White,  6  Johns.  Chan.  360  ;  Cross  v.  De  Valla,  1  Wall.  13  ; 
Osterman  v.  Baldwin,  U.  S.  S.  C.,  Dec.  7,  1867 ;  6  Wall.  000.  The 
annexation  of  Texas  removed  the  alienage  from  citizens  of  the 
United  States.  Osterman  v.  Baldwin,  6  Wall.  000;  Cryer  v. 
Andrews,  11  Tex.  170-183;  Paschal's  Annotated  Digest,  notes,  148, 
237,  238 ;  McKinney  v.  Sabariego,  18  How.  239. 

The  disability  of  the  alien  to  maintain  the  real  action  is  personal, 
and,  at  common  law,  relates,  not  to  the  date  of  acquiring  the 
property,  but  of  bringing  the  suit  1  Chitty's  PL  470,471;  7 
Bacon's  Abridgment,  Tit.  USES  AND  TRUSTS,  E.  2,  p.  89;  1  LI. 
ALIEN,  D,  137;  Coke  Litt.  129;  Id.  (B.  3)  p.  6;  Comyn's  Dig., 
ALIEN  (C.),  p.  301 ;  Kemp  v.  Kennedy,  1  Pet.  C.  C.  R.  40;  affirmed 
5  Cr.  173  ;  2  Cond.  223. 

What  is  the       [2]  In  all   cases  affecting  ambassadors,  other  pub- 

ifthe      n  He  ministers  and  consuls,  and  those  in  which  a  State 

Coiirt?no      shall  be  party,  the  Supreme  Court  shall  have  original 

jurisdiction.     In  all  the  other  cases  before  mentioned, 

Appellate?   the  Supreme  Court  shall  have  appellate  jurisdiction, 

both  as  to  law  and  fact,  with    such   exceptions  and 

under  such  regulations  as  the  Congress  shall  make. 

iilO.  The  Supreme  Court  has  no  original  jurisdiction  except 
in  the  two  classes  of  cases  mentioned  in  the  first  clause.  Story's 
Const.  §  1702.  And  to  that  extent  it  would  seem  to  be  ex 
clusive.  United  States  v.  Ravara,  2  Dall.  297;  Marbury  v.  Madi 
son,  1  Cr.  137. 


01.  2.]  ORIGINAL    JURISDICTION,    210.  205 

"CASES"  here  is  applied  as  a  generic  term  to  all  the  objects  How  is  the 
designated  by  "case  "  and  "controversy"  in  the  preceding  clause. ten"  ca,^es 
Curtis'   Com.    §    83.      See    "case"   and    "controversy"   defined.  J£i-201. 
Id.;  ante,  n.  199;  Martin  v.  Hunter,  1  Wheat.  304,  333;   Curtis' 
Cora.  §    124-130.     If  the  words    "to  all  cases"  give  exclusive 
jurisdiction  in  cases  affecting  foreign  MINISTERS,  they  may  also  give 
exclusive  jurisdiction,  if  such  be  the  will  of  Congress,  in  cases 
arising  under  the  Constitution,  laws,  and  treaties  of  the  United  181, 182,  202. 
States.     (Cohens  v.  Virginia,  6  Wheat.  392-399.)     Story's  Const. 
§  1713. 

But  it  does  not  mean  that  the  court  has  jurisdiction  of  every  Has  the 
"  CASE  "  or  question  which  may  arise  under  the  Constitution,  laws,  court  juris- 
or  treaties.    These  often  necessarily  devolve  upon  Congress  or  the  eiSy^ase 
executive,  according  as  the  law  shall  direct.     (Luther  v.  Borden,  or  question  ? 
7    How.    1.)      Curtis'  Com.    §   84-85<z.     The  word  is  therefore        195. 
limited  to  such   "cases"   as  arise  between  parties,  or   are  of  a 
judicatory  nature.     (Madison,  5  Elliot's  Debates,  483.)     Id.  §  85a, 
100. 

Not  to  all  questions  by  which  an  AMBASSADOR  may  be  affected. 
Id.  See  Stanbery's  arguments  in  the  Mississippi  and  Georgia  In 
junction  cases,  against  the  President  and  others,  reported  in  4 
Wallace.  Sec  the  United  States  v.  Ferreira,  13  How.  40. 

"  ORIGINAL  JURISDICTION  "  is  the  right  to  take  original  cog-  What  ia 
nizance  of.  the   case  or  controversy,  and  to  hear  and  determine  P*H»J??] . 
it  in  the  first  instance.     It  is  that  in  which  something  is  demanded Ju" 
in  the  first   instance  by  the  institution  of  process,  or  the  com 
mencement  of  a  suit.    Curtis'  Com.  §  107  ;    Story's  Const.  §  1703, 
1704. 

The  residue  of  the  original  jurisdiction  remains  to  be  vested  by  Where  is 
Congress  in  any  inferior  tribunals  which  it  may  see  fit  to  create.  the  residue 
(Martin  v.  Hunter,  1  Wheat.  304,  307  ;  Osborn  v.  The  Bank  of  the  n 
United  States,  9  Wheat.  738,  820;  Cohens  v.  Virginia,  6  Wheat  tion? 
395  ;  Story's  Const.  §  1698.)     Curtis'  Com.  §  111. 

Original  jurisdiction,  so  far  as  the  Constitution  gives  a  rule,  is  What  is 
coextensive  with  the  judicial  power.     (Osborn  v.  Bank  of  United  the  extent 
States,  9  Wheat.  820.)      Curtis'  Com.  §  159.      And  it  would  seem  ^liSal 
to  follow  that  in  cases  where  the  Constitution  itself  has  vested  jm-Isdlc- 
original  jurisdiction  in  the  Supreme  Court,  that  investiture  musttion? 
operate  as  an  exception  to  the  general  authority  to  Congress  to 
vest  original  jurisdiction  according  to  its  discretion.      Id.     And 
there  is  doubt  whether  in  such  cases  jurisdiction  of  the  Supreme 
Court  is   not  both   original   and   exclusive.      (United    States   v. 
Ortega,   11   Wheat.  467;    See  Story's  Const.  §    1G99;   1   Kent's 
Com.  Lect.  XV.  p.  315.)      Curtis'  Com.   160.      But  there  are  de 
cisions  the  other  way.     United  States  v.  Ravara,  2  Dall.  '297  ;  and 
see  also  Chisholm  v.  Georgia,  2  Dall.  419,  431,  436;   Act  of  28 
Feb.  1839   (5  St.  32);    Curtis'  Com.  §    161-164;    Schooner  Ex 
change  v.  McFaddin,  2  Cr.  117. 

Jurisdiction  is  the  power  to  hear  and  determine  a  cause.     It  is  What  is 
coram  judice,  whenever  a  case  is  presented,  which   brings  this  jurisuic- 
power  into  action.     If  the  petitioner  states  such  a  case  in  his  peti-  tlon 
tion,  that  on  a  demurrer,  the  court  would  render  judgment  hi  hi3        19& 
9* 


206     ORIGINAL    JURISDICTION,    210,    211.    [Art.  III.,  Sec.  2, 

favor,  it  is  an  undoubted  case  of  jurisdiction.     (United  States  v. 
Arredondo,  6  Pet.  709.)     Banton  v.  Wilson,  4  Tex.  403,  404. 

It  is  the  power  to  hear  and  determine  the  subject-matter  in  con 
troversy  between  the  parties  to  a  suit ;  to  adjudicate  or  to  exercise 
judicial  power  over  them,  the  question  is,  whether  on  a  cause 
before  a  court,  their  action  is  judicial  or  extrajudicial;  with  or 
without  authority  of  law  to  render  a  judgment  or  decree  upon  the 
rights  of  the  litigant  parties.  If  the  law  confer  the  power  to 
render  a  judgment  or  decree,  then  the  court  has  jurisdiction. 
(Rhode  Island  v.  Massachusetts,  12  Pet.  718.)  Banton  v.  Wilson, 
4  Tex.  404. 

Has  a  State       A  State  court  has  no  jurisdiction  of  a  suit  against  a  consul ;  and 

court  cogni-  whenever  this  defect  of  jurisdiction  is  suggested,  the  court  will 

consuls?       quash  the  proceeding.     It  is  not  necessary  that  it  should  be  by 

plea  before  general  imparlance.     Mannhardt  v.  Soderstrom,  1  Binn. 

138;  Davis  v.  Packard,  6   Pet.  41;  Commonwealth  v.  Kosloff.  5 

S.  <fc  R.  545;  Griffin  v.  Domiuguez,  2  Duer,  656.     A  consul  may, 

however,  be  summoned  as  a  garnishee  in  an  attachment  from  a 

State  court.     Kidderlin  v.  Meyer,  2  Miles,  242.     The  circuit  courts 

have  no  jurisdiction  of  a  cause  in  which  a  State  is  a  party.     Gale 

v.  Babcock,  4  Wash.  C.  C.  199 ;  S.  C.  Id.  344 ;  Cohens  v.  Virginia, 

When  is        already  cited.     In  those  cases  in  which  original  jurisdiction  is 

there  origi-   given  to  the  Supreme  Court,  founded  on  the  character  of  the  parties, 

app"liiite       ^e  Judicial  power  of  the  United  States  cannot  be  exercised  in  its 

jurisdic-        appellate  form.     Osborn  v.  United  States  Bank,  9  Wheat.  820.    But 

tion?  if  a  case  draws  in  question   the  laws,  Constitution,  or  treaties  of 

181, 182,  202.  the  United  States,  though  a  State  be  a  party,  the  jurisdiction  of 

the  federal  courts  is  appellate ;  for  in  such  case  the  jurisdiction  is 

founded,  not  upon  the  character  of  the  parties,  but  upon  the  nature 

of  the  controversy.     Cohens  v.  Virginia,  6  Wheat.  392  ;   Martin  v. 

Hunter's  Lessee,  1  Wheat.  337.     Congress  has  no  power  to  confer 

original  jurisdiction  on  the  Supreme  Court  in  other  cases  than  those 

enumerated  in  this  section.     Marbury  v.  Madison,  1  Cr.  137  ;   In 

the  matter  of  Metzger,  5  How.  176,  191-2;  In  re  Kaine,  14  How. 

119.     See  1  St.  80,  §  13 ;   1  Brightly's  Dig.  861,  862,  and  notes. 

And  it  seems  that  the  original  jurisdiction  is  exclusive.  (Mar- 
bury  v.  Madison,  1  Cr.  137.)  Curtis'  Com.  §  108;  Osborn  v.  Bank 
of  United  States,  9  Wheat.  738.  820.  821  ;  Story's  Const.  §  1697- 
1609. 

Where  the  character  of  the  cause  gives  appellate  jurisdiction, 
and  the  character  of  the  party  (as  an  ambassador  or  State)  gives 
original  jurisdiction,  the  appellate  jurisdiction  is  not  thereby  ousted. 
(Cohens  v.  Virginia,  6  Wheat,  392  tt  seq. ;  Martin  v.  Hunter,  1 
Wheat.  337.)  Curtis'  Com.  §  109;  Story's  Const.  §  1706-1721. 

The  original  jurisdiction  of  the  Supreme  Court  can  only  include 
cases  enumerated  in  the  Constitution.  (Marbury  v.  Madison,  1  Cr. 
137.) 

What  is  211.    "  IN  ALL  OTHER  CASES   BEFORE    MENTIONED,    THE  SUPREME 

appellate         COUKT    SHALL    HA.VE     APPELLATE    JURISDICTION."     &C. — It     is     the 

Uwaf"        essential  criterion  of  appellate  jurisdiction,  that  it  revises  and  cor 
rects  the  proceedings  in  a  cause  already  instituted,  aud  does  not 


01.  2.]  APPELLATE    JURISDICTION,    211.  207 

create  that  cause.     Marbury  v.  Madison,  1  Cr.  138;    Curtis'  Com. 
§  110,  113. 

The  Supreme  Court  possesses  no  appellate  power  in  any  case,  HOW  must 
unless  conferred  upon  it  by  act  of  Congress,  nor  can  it,  when  con-  ^«co*~ 
ferred,  be  exercised  in  any  other  mode  of  proceeding  than  that 
which  the  law  prescribes.     Barry  v.  Mercein,  5  How.  119. 

The  appellate  powers  are  not  given  by  the  judicial  act,  but  by 
the  Constitution.  They  are  limited  and  regulated  by  the  judicial 
act,  and  by  such  other  acts  as  have  been  passed  upon  the  sub 
ject.  Durousseau  v.  The  United  States,  6  Cr.  313.  Curtis'  Com. 
§112. 

Congress  may  prescribe  the  mode  of  exercising  this  appellate 
jurisdiction.  Marbury  v.  Madison,  1  Cr.  137  ;  Weston  v.  Charles 
ton,  2  Pet.  449;  United  States  v.  Hamilton,  3  Dall.  17  ;  Ex  parts 
Bollman,  4  Cr.  75 ;  Ex  parts  Kearney,  7  Wheat.  38 ;  Ex  parts 
Crane,  5  Pet.  190;  Story's  Const.  §  1755,  1756;  Curtis'  Com. 
§113. 

By  the  22d  section  of  the  judiciary  act,  the  controversy  must  wh.it  does 
be  concerning  a  thing  of  money  value ;  the  judgment  must  be  the  a.ct 
final;  and  the  matter  in  controversy  must  exceed  the  sum  of  tworequir' 
thousand  dollars.  By  the  25th  section,  the  right  tore-examine  does 
not  depend  on  the  money  value  of  the  thing  in  controversy,  but 
upon  the  character  of  the  right  in  dispute,  and  the  judgment  which 
the  State  court  has  pronounced  upon  it ;  and  it  is  altogether  im 
material  whether  the  right  in  controversy  can  or  can  not  be 
measured  by  a  money  standard.  (1  St.  84-86 ;  §  22,  25.  Barry 
v.  Mercein,  5  How.  120.  See  Wilson  v.  Daniel,  3  Dall.  401;  3 
Cond.  185;  Course  v.  Stead,  4  Dall.  22;  1  Cond.  217;  United 
States  v.  Brig  Union,  4  Cr.  216;  2  Cond.  91 ;  Smith  v.  Henry,  3 
Pet.  469 ;  Gordon  v.  Ogden,  Id.  33 ;  Hagan  v.  Foison,  10  Pet.  1 60  ; 
Oliver  v.  Alexander,  6  Pet.  143  ;  Scott  v.  Lunt,  6  Pet.  349 ;  Wal- 
len  v.  Williams,  7  Cr.  278;  Fisher  v.  Cockrell,  5  Pet.  248;  Martin 
v.  Hunter,  1  Wheat.  304;  3  Cond.  575;  Williams  v.  Norris,  12 
Wheat.  117  ;  6  Coud.  462.)  Bank  of  United  States  v.  Daniel,  12 
How.  52.  Rector  v.  Ashley,  U.  S.  C.  C.  Die.  T.,  1867  ;  6  Wall.  000. 

To  give  appellate  jurisdiction  under  the  25th  section,  it  must 
appear : — 

First— That  some  one  of  the  questions  stated  in  the  section  did  What  gives 
arise    in  the   court  below ;    and   Secondly,  that  a   decision    was  Appellate 
actually  made  thereon  by  the  same  court,  in  the  manner  required  {JJ"^10" 
by  the  section.     (Shoemaker  v.  Randell,  10  Pet.  394.)     McKinney 
v.  Carroll  12  How.  70. 

That  is,  that  the  question  was  made  and  the  decision  given  by 
the  court  below  on  the  very  point;  or  that  it  must  have  been 
given  in  order  to  have  arrived  at  the  judgment.  (Owings  v.  Nor 
wood.  5  Cr.  344;  Smith  v.  The  State,  6  Cr.  281  ;  Martin  v.  Hunter, 
5  Wheat.  305,  355  ;  Inglee  v.  Coolidge,  4  Cond.  155  ;  Miller  v. 
Xicholls,  4  Wheat.  311,  315;  4  Cond.  465;  Williams  v.  Norris,  12 
Wheat.  117,  124;  6  Cond.  462;  Fisher  v.  Cockerill.  5  Pet.  255, 
258;  Wilson  v.  Blackbird  Creek  Marsh  Company,  2  Pet.  245;  Sat- 
lerlee  v.  Mathewson,  2  Pet.  380,  410;  Craig  v.  Missouri,  4  Pet. 


208 


LAW  AND  FACT,    211.        [Art.  III.,  Sec.  2, 


Give  tho 
lour  requi 
sites  ? 


Define  law 
and  fact  ? 
270-272. 


"What  gives 
the  appel 
late  juris 
diction  ? 


What  juris 
diction  can 
Congress 
confer  ? 


Can  the 
States 
Buponuld 
any  thing  ? 


410;  Davis  v  Packard,  6  Pet.  41,  48;  Mayor  of  New  Orleans 
v.  De  Armas.  U  Pet.  234.)  Crowell  v.  Randell,  10  Pet.  394-398. 

After  this  rull  review,  these  propositions  were  stated  : — 1.  That 
some  one  of  the  questions  (stated  in  the  25th  section)  did  arise  in 
the  State  court ;  2.  That  the  question  was  decided  by  the  State 
court  as  required  in  the  same  section;  3.  It  is  not  necessary  that 
the  question  should  appear  on  the  record  to  have  been  raised,  and 
the  decision  made  in  direct  and  positive  terms  ipsissimis  verb  is ; 
but  that  it  is  sufficient  if  it  appear  by  clear  and  necessary  intend- 
ment,  that  the  question  must  have  been  raised,  and  must  have  been 
decided  in  order  to  have  induced  the  judgment.  4.  That  it  is  not 
sufficient  to  show  that  a  question  might  have  arisen  and  been  ap 
plicable  to  the  case;  unless  it  is  further  shown  on  the  record,  that 
it  did  arise,  and  was  applied  by  the  State  court  in  the  case. 
Crowell  v.  Randell,  10  Pet.  398.  Affirmed,  Choteam  v.  Margue 
rite,  12  How.  510;  McKinney  v.  Carroll,  12  How.  70.  See  Bright- 
ly's  Digest,  Tit.  "  ERRORS  AND  APPEALS,"  pp.  257-261,  and  volumi 
nous  notes  thereon. 

"LAW  AND  FACT." — Since  the  seventh  amendment,  Congress 
can  not  confer  upon  the  Supreme  Court  authority  to  grant  a  new 
trial  by  a  re-examination  of  the  facts,  and  tried  by  a  jury,  except 
to  redress  errors  of  law.  (Parsons  v.  Bedford,  3  Pet.  447,  449. 
See  Bank  of  Hamilton  v.  Dudley,  2  Pet.  492).  Curtis'  Com.  §  114. 

It  is  the  "  case "  and  not  the  court  which  gives  the  appellate 
jurisdiction.  (Martin  v.  Hunter,  1  Wheat.  394).  Curtis'  Com. 
§  1 15.  Therefore,  if  the  question  or  the  parties  give  federal  juris 
diction,  it  may  be  reached  by  appeal.  Id. ;  Cohens  v.  Virginia, 
6  Wh.  413.  The  objects  of  appeal,  not  the  tribunals  from  which 
it  is  to  be  made,  are  alone  contemplated.  Id.  416;  Curtis'  Com. 
§  116.  And  see  Osborn  v.  Bank  of  United  States,  9  Wheat. 
820,  821;  Story's  Const.  §  1701. 

If  the  objects  can  be  attained  without  excluding  the  concurrent 
jurisdiction  of  the  State  courts,  over  cases  which  existed  before, 
it  would  seem  to  be  necessary  to  adopt  such  a  construction  as  will 
sustain  their  concurrent  powers.  (Teal  v.  Felton,  12  How.  284, 
292.)  Curtis'  Com.  §  121,  123,  124.  As  to  when  original  juris 
diction  is  exclusive,  see  same  author,  §  129-135,  and  Martin  v. 
Hunter;  Houston  v.  Moore,  5  Wheat.  1,  12. 

Congress  can  not  confer  jurisdiction  upon  any  courts,  but  such 
as  exist  under  the  Constitution  and  laws  of  the  United  States, 
although  the  State  courts  may  exercise  jurisdiction  in  cases  au 
thorized  by  the  laws  of  the  State,  and  not  prohibited  by  the  ex 
clusive  jurisdiction  of  the  federal  courts.  Houston  v.  Moore,  5 
Wheat.  24-28,  §  135,  p.  178.  And  wherever  the  law  of  Congress 
furnishes  the  offense,  the  State  law  can  only  be  enforced  by  tho 
authority  of  Congress,  or  unless  the  power  remain  concurrent.  Id. 

If  the  jurisdiction  be  concurrent,  the  sentence  of  either  court 
may  be  pleaded  in  law.  Houston  v.  Moore,  5  Wheat.  40;  1  Cur 
tis'  Com.  p.  1 80. 

Where  Congress  has  exercised  a  power  over  a  particular  si.b- 
ject  given  them  by  the  Constitution,  it  is  not  competent  for  State 
legislation  to  add  to  the  provisions  of  Congress  upon  that  subject. 


Cl.  3.]  TKIAL— CRIMES,   212.  209 

The  action  by  Congress  seems  to  exclude  State  legislation. 
(Houston  v.  Moore,  ft  Wheat.  1,  22,  23  ;  Prigg  v.  Pennsylvania, 
1G  Pet.  608.)  Story's  Const.  3d  ed.  p.  615. 

"  WHERE  A  STATE  SHALL  BE  A  PARTY." — That  is:  1.  Where  one  In  what 
State  is  plaintiff,  and  another  State  is  defendant;    2.  Where    aJJj^VstSo 
State  is  plaintiff,  and  an  individual,  whether  a  citizen  of  some  other  be*^  party  ? 
State  or  an  alien,  is  defendant.     3.  Where  a  foreign  State  is  plain 
tiff  against  one  of  the  United  States  as  defendant.     Curtis'  Com. 
§  153-157.     See  Rhode  Island  v.  Massachusetts,  12  Pet.  657  ;  New 
Jersey  v.  New  York,  5  Pet.  283  ;  Pennsylvania  v.  The  Wheeling 
&   Belmont   Bridge    Co.     13    Howard,   528 ;    Cherokee   Nation  v. 
Georgia,  5  Pet.  1 ;  Exparte  Juan  Madrazo,  7  Pet.  627. 

[3.1     The  trial  of  all  crimes,  except  in  cases  of  im-  HOW  and 

where  must 

peacbment,  shall  be   by  jury;   and  such  trial  shall  be  trials  be 
held  in  the  State  where  the  said  crimes  shall  have 
been   committed  ;    but  when   not   committed   within 
any  State,  the  trial  shall  be  at  such  place  or  places  as 
the  Congress  may  by  law  have  directed. 

212.  "THE  TRIAL."  (L.  Lat.  trialio.  Exactissima  litis  contextata,  Define 
cor  am  judice,  per  duodecem  virale  exagititio.  SPELMAN.) — The  term  trial? 
means  here,  the  examination  before  a  competent  tribunal,  accord 
ing  to  the  laws  of  the  land,  of  the  facts  put  in  issue  upon  the  in 
dictment  or  presentment,  for  the  purpose  of  determining  the  truth 
of  such  issues.  United  States  v.  Curtis,  4  Mason,  232;  Co.  Litt. 
124&.  And  see  Bun-ill's  Law  Die.,  TRIAL;  Magna  Charta,  ch.  29 
(9  Henry  III.);  2  Inst.  45;  3  Black.  Com.  379-381;  4  Black. 
Com.  349,  350;  2  Kent's  Com.  Lect.  24,  pp.  1-9;  3  Elliot's 
Debates,  331,  339;  De  Lolme,  B.  1,  ch.  13,  B.  2,  ch.  16;  Paley, 
B.  6,  ch.  8;  2  Wilson's  Law  Lect.  P.  2,  ch.  6,  p.  305;  Story's 
Const.  §  1778-1794. 

''  The  trial "  per  pais,  or  by  the  country,  is  the  trial  by  a  jury, 
who  are  called  the  peers  of  the  party  accused,  being'  of  the  like 
condition  and  equality  in  the  State.  (Magna  Charta.)  Story's  Const. 
§  1779. 

"OF  ALL  CRIMES  EXCEPT   IN   CASES  OF   IMPEACHMENT." — See  What  means 
"CRIME"  defined,  notes  193,  194.     Here  it  means  treason,  piracy  ''crimes'* 
felony,  or  some  offense  against  the  law  of  nations  or  an  act  of  the    e 
Congress  of  the  United  States.     And  this  clause  is  to  be  taken         39. 
subject  to  the  exceptions,  in  the  fifth  amendment,  as  to  trials  in  the 
land  and  naval  service.     The  term  "  crime  "  here  doubtless  em 
braces  misdemeanor. 

In  the  case  of  the  United  States  v.  Hudson  &  Goodwin  (7 
Cranch,  32),  it  was  held  that  "the  legislative  authority  musj;  first 
make  an  act  a  crime,  affix  a  punishment  to  it,  and  declare  the 
court  that  shall  have  jurisdiction  of  the  offense,"  before  the  courts 
of  the  United  States  can  exercise  jurisdiction  over  it.  This  doc 
trine  was  affirmed  by  the  case  of  the  United  States  v.  Coolidge  et 
al.  (1  Wheaton,  415),  and  Chief-Justice  Marshall,  in  delivering  the 
opinion  of  the  court  in  Ex  parte  Bollman  &  Svvartwout  (4  Cranch, 


210  JUDGMENT,  212.          [Art.  III.,  Sees.  2,  3, 

95),  said:  li  Courts  which  originate  in  the  common  law  possess  a 
jurisdiction  which  must  be  regulated  by  the  common  law,  until 
some  statute  shall  change  their  established  principles ;  but  courts 
which  are  created  by  written  law,  and  whose  jurisdiction  is  defined 
by  written  law,  cannot  transcend  that  jurisdiction."  And  it  was  in 
following  these  cases  that  Justice  McLean  held,  in  United  States 
v.  Lancaster  (2  McLean's  R.  433),  that  "  the  federal  government 
has  no  jurisdiction  of  offenses  at  common  law.  Even  in  civil  cases 
the  federal  government  follows  the  rule  of  the  common  law  as 
adopted  by  the  States,  respectively.  It  can  exercise  no  criminal 
jurisdiction  which  is  not  givan  by  statute,  nor  punish  any  act,  crim 
inally,  except  as  the  statute  provides."  The  same  doctrine  is  fol 
lowed  in  Kitchen  v.  Strawbridge,  1  Wash.  C.  C.  R.,  84 ;  United 
States  v.  New  Bedford  Bridge,  1  Wood  &  Minot  401 ;  Ex  parte 
Sullivan,  3  Howard,  103;  12  Peters,  654;  4  Dallas,  10,  and 
note;  I  Kent's  Com.  354^  Sedgwick  on  Statutory  and  Consti 
tutional  Law,  17 ;  and  Wharton,  in  reviewing  this  question, 
says:  "However  this  maybe  on  the  merits,  the  line  of  recent 
decisions  puts  it  beyond  doubt  that  the  federal  courts  will  not 
take  jurisdiction  over  any  crimes  which  have  not  been  placed 
directly  under  their  control  by  act  of  Congress."  (Am.  Criminal 
Law,  174.)  Report  on  the  Impeachment  of  the  President,  75,  76. 
Define jur}'?  "  BY  A  JURY  "  is  generally  understood  to  mean,  ex  li  termini,  a 
trial  by  a  jury  of  twelve  men,  impartially  selected  (in  accordance 
with  law),  who  must  unanimously  concur  in  the  guilt  of  the  ac- 
2CO.  cused  before  a  conviction  can  be  had.  Any  law,  therefore,  dis- 
'pensing  with  any  of  these  requisites,  may  be  considered  unconsti 
tutional.  (Workv.  The  State,  2  Ohio  St.  R.  296:  The  State  v.  Cox, 
3  English,  436 ;  The  State  v.  The  People,  2  Parker  C.  C.  322.  329, 
402,  5(52;  2  Leading  Criminal  Cases,  327,  and  note.)  Story's  Const. 
3d  edition,  §  1779. 

Docs  it  This  does  not  constitute  them  judges  of  the  law  in  criminal 

make  the  cases.  United  States  v.  Morris,  1  Curt.  C.  C.  23,  49 ;  United  States 
Jur,y  *  ftl  v.  Shive,  Bald.  510;  United  States  v.  Battiste,  2  Sumn.  240.  And 
Wt  see  Townseud  v.  The  State,  2  Blackf.  (Ind.),  152;  Pierce  v.  The 

State,  13  N.  H.  536:  Commonwealth  v.  Porter,  10  Met.  263  ;  Com 
monwealth  v.  Sherry,  Wharton  on  Homicides,  481.  It  only  em 
braces  those  crimes  which  by  former  laws  and  customs  had  been 
tried  by  jury.  United  States  v.  Duane.  Wall.  106.  It  did  not 
secure  to  the  conspirators  who  assassinated  the  President  iti 
Washington  city  during  the  war,  and  while  martial  law  existed  in 
Washington  city,  the  right  to  trial  by  jury.  The  Trial  of  the 
Conspirators. 

231-237.  This  section  compared  with  the  fourth,  fifth,  and  sixth  amend 

ments.  Ex  parte  Milligan,  4  Wallace,  119;  Story's  Const.  § 
1782.  The  first  of  these  secures  a  presentment  or  indictment  by 
a  grand  jury  before  there  can  be  a  trial  by  a  jury.  Id.  And  for 
the  reason  of  these  amendments  in  the  shape  of  a  Bill  of  Rights, 
see  2  Elliot's  Debates,  331,  380-427;  1  Id.  119-122;  3  Id.  139-15:5, 
Why  in  the  30°- 

•where  com-  213.  IN  STATES  WHERE  COMMITTED. — This  was  to  prevent  the 
united  ?  defendant  from  being  dragged  into  a  distant  State.  (2  Elliot's 


01.8,1.]  TRIAL— TREASON,    214,    215.  211 

Debates,  399,  400,  407,  420;  2  Hale's  P.  C.  ch.  24,  pp.  260.  264; 
Hawk  P.  C.  ch.  25,  §  34 ;  3  Bl.  Com.  383.) 

Many  of  the  States  are  divided  into  two  or  more  districts  (cir 
cuits)  defined  by  law ;  and  the  rule  of  trying  the  accused  in  such 
district  is  believed  to  be  now  strictly  adhered  to. 

214.  "BUT    WHEN    NOT    COMMITTED    WITHIN  ANT    STATE,   THE  Where  are 

TRIAL  SHALL  BE  AT  SUCH  PLACE  OR  PLACES  AS  CONGRESS  MAY  BY  offenders 
LAW  HAVE  DIRECTED." — The  offenses  committed  in  the  District  of  r 
Columbia  have  always  been  tried  in  the  District,  under  the  *'  exclu 
sive  legislation ;"  those  in  the  organized  territories  have  been  tried 
there  by  the  local  courts  of  the  territories ;  those  committed  by 
whites,  or  by  Indians  against  whites  (to  a  limited  extent),  have  been 
tried  in  the  States  to  whose  federal  courts  jurisdiction  had  been 
committed  by  the  laws  to  regulate  trade  and  intercourse  with  the 
Indian  tribes;  those  committed  in  forts  and  arsenals,  over  which 
jurisdiction  had  been  ceded  by  the  States,  have  been  tried  in  the 
United  States  District  or  Circuit  Courts  in  that  State ;  those  upon 
the  high  seas  in  the  State  where  the  vessel  first  arrives. 

So  that  "  NOT  COMMITTED  IN  ANY  STATE,"  may  be  defined  to  be 
offenses  committed  in  the  District  of  Columbia,  in  forts  or  arsenals 
to  which  jurisdiction  has  been  ceded  by  the  States ;  in  the  terri 
tories  of  the  United  States ;  in  the  Indian  country ;  upon  the 
high  seas,  and  everywhere,  when  against  the  law  of  nations. 

SEC.  III. — [1.1  Treason  against  the   United  States  Define 

.     '  .      treason? 

snail  consist  only  in  levying  war  against  them,  or  in 
adhering  to  their  enemies,  giving  them  aid  and  com-      192. 
fort.     No  person  shall  be  convicted  of  treason,  unless  By  how 
on  the  testimony  of  two  witnesses  to  the  same  overt  witnesses? 
act,  or  on  confession  in  open  court. 

215.  "TREASON." — [Law  Lat.  Proditio.      L.  Fr.  Treson,  from  Define 
trrer,  trehir,  trahir,  to  betray.]     Bun-ill's  Law  Die.,  TREASON.  treason  at 

The  word  "  ONLY  "  was  used  to  exclude  from  the  criminal  juris-  j^\m°r 
prudence  of  the  new  republic  the  odious  doctrines  of  constructive  pefine 
treason.     Its  use,  however,  while   liimting  the  definition  to  plain  "only"? 
overt   acts,  brings  these  acts   into  conspicuous  relief,   as   being 
always,  and  in  essence,  treasonable. 

War,  therefore,  levied  against  the  United  States  by  citizens  of 
the  republic,  under  the  pretended  authority  of  the  new  State 
government  of  North  Carolina,  or  the  new  central  government 
which  assumed  the  title  of  the  "Confederate  States,"  was  treason 
against  the  United  States.  Chief-Justice  Chase  in  Shortridge  v. 
Macon  (North  Carolina),  16th  June,  1867. 

In  the  prize  cases  the  Supreme  Court  simply  asserted  the  right        11T. 
of  the  United  States  to  treat  the  insurgents  as  belligerents,  and  to 
claim  from  foreign  nations  the  performance  of  neutral  duties  under    • 
the  penalties  known  to  international  law.    The  decision  recognized, 
also,  the  fact  of  the  exercise  and  concession  of  belligerent  rights, 
and  affirmed,   as    a  necessary  consequence,  the  proposition  that 


212 


TKEASON,    215,    216.         [Art.  III.,  Sec.  3, 


What  were 
the  relations 
of  the  inhab 
itants  of  the 
rebel  States 
to  those  loy 
al  to  the 
Union? 


What  is  the 
effect  of  se 
questration? 


What  war  is 
necessary  ? 


during  the  war  all  the  inhabitants  of  the  country  controlled  by 
the  rebellion  and  all  the  inhabitants  of  the  country  loyal  to  the 
Union  were  enemies  reciprocally  each  of  the  other.  But  there  is 
nothing  in  that  opinion  which  gives  countenance  to  the  doctrine 
which  counsel  endeavor  to  deduce  from  it:  that  the  insurgent 
States,  by  the  act  of  rebellion,  and  by  levying  war  against  the 
nation,  became  foreign  States,  and  their  inhabitants  alien  enemies. 
United  States  v.  Shortridge.  Id. 

Held,  that  the  enforced  payment  of  a  debt  under  the  confederate 
sequestration  laws,  was  no  protection.  It  was  denied  that  the 
"Confederate  States"  was  a  de facto  government. 

For  the  enumeration  of  the  acts  of  treason  in  England,  see  4 
Steph.  Com.  185-193;  4  Bl.  Com.  76-84;  Wharton's  American 
Crim.  Law,  B.  7.  ch.  1,  §  2715-2777.  Burrill's  Law  Die.,  TREASON. 

There  must  be  an  actual  levying  of  war ;  a  conspiracy  to  subvert 
the  government  by  force  is  not  treason ;  nor  is  the  mere  enlist 
ment  of  men,  who  are  not  assembled,  a  levying  of  war.  Ex  parte 
Bollman,  4  Cr.  75;  United  States  v.  Hanway,  2  Wall.  Jr.  140;  Id. 
136;  4  Am.  L.  J.  83.  And  no  man  can  be  convicted  of  treason, 
who  was  not  present  when  the  war  was  levied.  2  Burr's  Trial, 
401,  439;  and  see  the  same  case,  Appendix  to  4  Cranch,  469-508. 
See  United  States  v.  Willberger,  5  Wheat.  97. 

The  whole  definition  is  copied  from  the  statute  of  25  Ed.  III.,  ch. 
2 ;  1  Hale's  Pleas  of  the  Crown,  259  ;  Judge  Marshall's  charge  in 
Burr's  Trial;  Story's  Const.  §  1799.  See  3  Wilson's  Law  Lect, 
ch.  5,  pp.  95,  96;  Montesquieu  Spirit  of  Laws,  B.  12,  ch.  7 ;  4  Bl. 
Com.  75-84.  The  definition  admits  of  no  constructive  treasons. 
Federalist,  No.  43  ;  Story's  Const.  §  1798;  Jefferson's  Correspond 
ence,  72-103. 

If  war  be  actually  levied,  that  is,  if  a  body  of  men  be  actually 
assembled  for  the  purpose  of  effecting  by  force  a  treasonable  pur 
pose,  all  who  perform  any  part,  however  minute,  or  however 
remote  from  the  scene  of  action,  and  who  are  actually  leagued 
in  the  general  conspiracy,  are  to  be  considered  as  traitors.  But 
there  must  be  an  actual  'assemblage  of  men  for  the  treasonable 
purpose,  to  constitute  a  levy  of  war.  (Ex  parte  Bollman,  4  Cr.  126 ; 
United  States  v.  Burr,  4  Cr.  469-508 ;  Sergts.  Const,  ch.  30  [32]  ; 
People  v.  Lynch,  1  John.  553.) 

And  further,  for  the  definition  of  treason,  see  United  States  v. 
Hoxie,  1  Paine,  265 ;  United  States  v.  Hanway,  2  Wallace,  Jr. 
139 ;  Regina  v.  Frost,  9  C.  &  P.  129  ;  2  Bishop  on  Cr.  Law,  §  1032. 

Treason  is  a  breach  of  allegiance,  and  can  be  committed  by  him 
only,  who  owes  allegiance  either  perpetual  or  temporary.  United 
States  v.  Willberger,  5  Wheat.  97. 

To  what  216.  Two  WITNESSES. — The  evidence,  it  seems,  refers  to  the 

trial  does  it  proofs  on  trial,  and  not  to  the  preliminary  hearing  before  the  corn- 
refer?  nutting  magistrate,  or  the  proceeding  before  the  grand  inquest. 
United  States  v.  Hanway,  2  Wall.  Jr.  138;   1  Burr's  Trial,  196. 
But  see  Fries's  Trial,  14  Whart.  St.  Tr.  480,  and  the  same  in  2 
pamphlet,  171. 

There  must  be,  as  there  should  be,  the  concurrence  of  two  wit 
nesses  to  the  same  overt  act,  that  is,  open  act  of  treason,  who  aro 


From 
whence 
copied  ? 


What  is  a 
levying  of 
war  ? 


01. 1,  2.]  TREASON,  217,  218.  213 

above  all  reasonable  exception.     (United  States  v.  Burr,  4  Cr.  469, 
496,  503,  505,  506,  607 ;  Greenleaf  s  Ev.  §  237.) 

[2.]  The  Congress  shall  have  power  to  declare  the  what  is  the 

•   ••  f,  ,  •     -i  /»  limitation 

punishment  01   treason,  but  no  attainder  ot   treason  on  the 
shall  work  corruption  of  blood,  or  forfeiture,  except  Ku " 
during  the  life  of  the  person  attainted. 

217.  PUNISHMENT  OF  TREASON. — Punishment  is  the  penalty  of  Define 
the  law,  inflicted  after  judgment  or  sentence.     For  the  English  I»?W*- 
punishment  of  treason,  see  Story's  Const.  §  1298,  and  notes. 

The  punishment  was  first  declared  by  Congress  to  be  death  by 
hanging.  Act  of  30th  April,  1790,  ch.  36,  1  St.  112,  §  1,  note  (a). 
It  is  now  death  or  imprisonment.  Act  of  17th  January,  1862, 
12  St.  589,  590.  See  1  Brightly's  Digest,  201,  §  1,  notes  a  to  ft; 
Wharton's  Criminal  Laws,  §  1117-1120;  Id.  2719-2736;  2  Bright 
ly,  100,  101. 

ATTAINDER  OF  TREASON. — See  Bill  of  Attainder,  note  142.  142- 

"  CORRUPTION  OF  BLOOD." — By  corruption  of  blood  all  inheritable  Define 
qualities  are  destroyed ;  so  that  an  attainted  person  can  neither  JJ^JJ^Jj11 
inherit  lands  nor  other  hereditaments  from  his  ancestors,  nor  re-  ° 
tain  ihose  he  is  already  in  possession  of,  nor  transmit  them  to  any 
heir.     Story's  Const.  §  1299,  1300;  4  Bl.  Com.  381-388. 

The  power  of  punishing  treason  against  the  United  States  is 
exclusively  in  Congress.  (The  People  r.  Lynch,  11  Johns.  553  ; 
Ravvle's  Const,  ch.  11,  pp.  140-143  ;  Id.  ch.  21,  p.  207  ;  Sergeant's 
Const,  ch.  30  [ch.  32.] ;  Story's  Const.  §  1301. 

ARTICLE  IV. 

SEC.  I. — Full  faith  and  credit  shall  be  given  in  each  what  credit 
State  to  the  public  acts,  records,  and  judicial  proceed  given  to 
ings  of  every  other*  State.     And  the  Congress  may-&c.'? 
by  general  laws,  prescribe  the  manner  in  which  such 
acts,  records,  and  proceedings  shall  be  proved,  and  who  may 

,,  ~«      .    ,i  n  prescribe 

the  enect  thereof.  the  proofs? 

218.  "FULL  FAITH  AND  CREDIT,"  as  the  cases  cited  will  show,  Define  full 
means  that  credit,  which  the  State  itself  gives,  not  to  the  mode  of  faith  ? 
proof,  but  to  the  acts  when  proven. 

"  PUBLIC  ACTS." — This  has  reference  to  the  legislative  acts  and  Public 
resolves  ;  that  is.  to  the  laws  of  the  State.  acls  ? 

"  RECORDS  "  are  the  registration  of  deeds  or  the  civil  law  records  Records? 
of  titles,  as  in  Louisiana,  the  registration  of  wills,  public  docu 
ments,  archives,  legislative  journals;  and,  in  fact,  all  acts,  legis 
lative,  executive,  judicial,  and  ministerial,  which  constitute  tho 
public  records  of  a  State.  McGrew  v.  Watrous,  16  Tex.  509,  512  ; 
White  v.  Burnley,  20  How.  250;  Paschal's  Annotated  Digest,  Art. 
3710,  note  885.  Define 

JUDICIAL  PROCEEDINGS    are    the   proceedings  and   judgments  ^JJ1^. 
which  appertain  to  courts  of  record. 


214  JUDGMENTS,    218.  [Art.  IY., 

"What  is  the       "Where  the  jurisdiction  has  attached,  the  judgment  is  conclusive 

rule  where    for  a]j  purposes,  and  is  not  open  to  any  inquiry  upon  the  merits. 

B«5-          (Bissell  v.  Briggs,  9   Massachusetts,  462;  United  States  Bank  v. 

tach'ed?  Merchants'  Bank,  7  Gill,  430.)  Christinas  v.  Russel,  5  Wall.  302. 
"  If  a  judgment  is  conclusive  in  the  State  where  it  was  pronounced, 
it  is  equally  conclusive  everywhere  "  in  the  courts  of  the  United 
States.  (Story's  Const.  §  1313,  3d  ed.)  Id.  302.  By  that  statute 
(of  Mississippi)  it  was  enacted  that  "  no  action  shall  be  maintained 
on  any  judgment  or  decree  rendered  by  any  court  without  this 
State,  against  any  person  who,  at  the  time  of  the  commencement 
of  the  action  in  which  such  judgment  or  decree  was  or  shall  be 
rendered,  was  or  shall  be  a  resident  of  this  State,  in  any  case 
where  the  cause  of  action  would  have  been  barred  by  any  act  of 
limitation  of  this  State,  if  such  suit  had  been  brought  therein." 
(Mississippi  Code,  400.)  This  act  was  unconstitutional.  Christ 
mas  v.  Russel,  5  Wall.  299,  302.  Had  it  been  an  act  merely  limit 
ing  the  time  within  which  the  suit  should  be  brought,  it  would 
have  been  constitutional.  (McElmoyle  v.  Cohen,  13  Pet.  312.)  Id. 
300. 

What  is  the  A  judgment  of  a  State  court  has  the  same  credit,  validity,  and 
effect  of  a  effect  in  every  other  court  within  the  United  States,  which  it  had  in 
judgment?  the  gtate  where  it  vvag  reudered.  Hampton  v.  McConnell,  3  Wh. 
234;  Sarchet  v.  The  Davis,  Crabbe,  185.  And  it  matters  not  that 
it  was  commenced  by  an  attachment  of  property,  if  the  defendant 
afterward  appeared  and  took  defense.  Mayhew  v.  Thatcher,  6 
Wh.  129.  Nor  that  the  service  was  illegal.  Houston  v.  Dunn,  13 
Tex.  480.  Such  judgments,  as  far  as  the  court  rendering  them  had 
jurisdiction,  arc  to  have,  in  all  courts,  full  faith  and  credit;  and  the 
merits  of  the  judgment  are  never  put  in  issue,  with  the  qualification, 
that  it  must  appear  by  the  record  that  the  party  had  notice.  Ben- 
ton  v.  Bergot,  10  S.  &  R.  242.  They  have  not,  however,  by  the 
act  of  Congress,  full  power  and  conclusive  effect,  but  only  such 
effect  as  they  possessed  in  the  State  where  the  judgment  was  ren 
dered.  Green  v.  Sarmiento,  3  Wash.  C.  C.  17 ;  Bank  of  the  State  of 
Alabama  v.  Dalton,  9  How.  528.  And  therefore,  whatever  pleas 
would  be  good  therein,  in  such  State,  and  none  others,  can  be 
pleaded  in  any  other  court  within  the  United  States.  Hampton  v. 
McConnell,  3  Wh.  234;  Mills  v.  Duryee,  7  Cr.  484.  Thus,  it  would 
be  competent  to  show  that  the  judgment  was  obtained  by  fraud,  or 
that  the  court  rendering  it  had  no  jurisdiction.  Warren  Manufac 
turing  Co.  v.  Etna  Insurance  Co.  2  Paine.  502;  Steele  v.  Smith,  7 
W.  <fe  S.  447  ;  Driukard  v.  Ingram,  21  Tex.  653.  This  has  been 
denied  as  to  fraud  between  parties  and  privies.  Christmas  v.  Rus 
sel,  5  Wall.  505-508.  But  not  to  litigate  the  merits  of  the  judg 
ment.  Ingram  v.  Drinkard.  14  Tex.  352.  When  the  judgment  of 
a  sister  State  is  produced,  which  was  rendered  by  a  court  of  general 
jurisdiction,  the  presumption  is  in  favor  of  the  power  and  jurisdic 
tion  until  the  contrary  appears.  (Scott  v.  Coleman,  5  Littel,  350; 
Mills  v.  Martin,  19  Johns.  33;  3  Wend.  2G7  ;  4  Cow.  282  ;  6  Wend. 
447;  8  Cow.  311;  Phillips's  Kvid.,  Cow.  &  Hill's  Notes,  vol.  5, 
p.  896,  note  G39.)  And  the  plaintiff  need  not  aver  and  prove  the 
jurisdiction.  Reid  v.  Boyd,  13  Tex.  242.  Where  the  writ  was  a 


Sec.  l.J  JUDGMENTS,    218.  215 

capias  ad  respondendum,  and  the  return  was,  "  executed  personally," 
it  was  priitiO,  facie  evidence  of  service.  Reid  v.  Boyd,  13  Tex.  242, 
243.  If  there  has  bf  en  no  personal  service,  and  if  the  defendant 
has  not  appeared  and  taken  dei'ense,  the  judgment  of  a  sister  State 
will  not  support  an  action.  Notice  or  appearance  is  essential  to 
the  jurisdiction.  Webster  v.  Reid,  11  How.  460;  Nations  v.  John 
son,  24  How.  208.  Notice  by  publication  is  not  sufficient.  Bos- 
well's  Lessee  v.  Otis,  9  How.  350  ;  Oakley  v.  Aspinwall,  4  Comst. 
135 ;  Mills  v.  Duryee,  7  Cr.  481 ;  McElmoyle  v.  Cohen,  13  Pet.  330. 
And  see  the  notes  in  American  Leading  Cases,  vol.  2,  p.  551 ;  3 
Phillips's  Ev.,  Cow.  &  Hill's  Notes,  p.  353,  note  63G. 

If  a  court  of  any  State  should  render  judgment  against  a  man  What  is  the 
not  within  the  State,  nor  bound  by  its  laws,  lior  amenable  to  the  effect  °f 
jurisdiction  of  the  court,  if  that  judgment  should  be  produced  in  jurisdiction? 
another  State,  against  the  defendant,  the  jurisdiction  of  the  court 
might  be  inquired  into  ;  and  if  a  want  of  jurisdiction  appeared,  no 
credit  would  be  given  to  the  judgment.  Bissell  v.  Briggs,  9  Mass. 
462;  Green  v.  Sarmieuto,  1  Pet.  C.  C.  20:  Hall  v.  Williams,  6  Pick. 
232 ;  Woodward  v.  Tremere,  9  Pick.  355  ;  Schaffer  v.  Yates,  2 
Hon.  253  ;  Batwick  v.  Hopkins,  4  Ga.  48  ;  Towns  (Gov.)  v.  Springer, 
9  Ga.  132;  The  Central  Bank  of  Georgia  v.  Gibson,  11  Ga.  455; 
Darcy  v.  Ketchum,  11  How.  165.  And  the  judgment  may  be 
shown  to  be  void,  collaterally,  for  want  of  personal  service.  Web 
ster  v.  Reid.  11  How.  460;  Gleason  v.  Dodd,  4  Met.  333;  Lincoln 
v.  Trevor,  2  McLean,  473.  Where  the  original  process  was  attach 
ment  and  publication,  and  no  personal  service,  and  judgment  was  ren 
dered  in  California,  and  suit  brought  upon  this  judgment  in  Texas  the 
California  judgment  was  rightly  held  to  be  void.  Green  v.  Custard, 
23  How.  486.  But  where  a  suit  was  brought  in  chancery,  in  Mis 
sissippi,  and  the  defendants  were  served  with  process,  and  appeared 
and  answered,  and  the  chancellor  rendered  a  decree  dismissing 
the  bill;  and  two  years  afterward,  a  writ  of  error  was  prosecuted 
to  the  Supreme  Court,  and  an  affidavit  filed  that  the  defendants  were 
not  within  the  jurisdiction,  and  had  no  counsel  within  the  jurisdiction, 
and  citation  to  appear  and  defend  the  writ  of  error  was  published 
in  a  newspaper;  after  which  the  Supreme  Court  reversed  the  judg 
ment,  and  rendered  a  decree  against  the  defendants,  which  judg 
ment  was  perfected  by  the  chancellor ;  and  upon  this  judgment  suit 
was  brought  in  the  United  States  District  Court  of  Texas:  Held, 
that  the  judgment  or  decree  was  not  a  nullity,  as  it  would  have 
been  had  there  been  no  original  service.  Nations  v.  Johnson,  24 
How.  203.  Some  of  the  courts  have  strongly  intimated  that  a  law 
which  should  make  a  judgment,  obtained  without  porsi-nal  service, 
the  foundation  of  an  action,  would  be  unconstitutional  «nd  void. 
And  some  of  them  go  much  further,  and  lay  down  the  rule  as  ap 
plicable  to  the  inception  of  the  suit,  that  notice  by  publication  is 
insufficient  to  support  the  judgment  in  any  jurisdiction,  except  in 
the  courts  of  the  State  where  it  was  rendered.  (Boswell's  Lessee 
v.  Otis,  9  How.  350;  Oakley  v.  Aspinwall,  4  Comst.  513.)  Nations 
v.  Johnson.  24  How.  203.  The  publication  in  the  Supreme  Court 
will  be  held  to  be  constructive  service,  provided  the  defendant  was 
served  with  original  process  in  the  lower  court,  and  appeared  and 


216  JUDGMENTS,    218.  [Art.  IV., 

took  defense.     Nations  v.  Johnson,  24  How.  203.     A  decree  of  a 
court  of  chancery  is  within  this  article  and  the  act  of  Congress  for 
authentication.    Patrick  v.  Gibbs,  17  Tex.  277.     And  this  court  will 
not  look  to  the  formula  of  the  decree,  if  the  parties,  and  the  final 
result  be  certain,  so  that  it  is  a  final  judgment  which  could  be 
enforced  in  the  sister  State  from  which  it  came.     (Whiting  v.  The 
Bank,   13   Pet.  6 ;    Ordinary  v.  McClure,  I  Bailey,   7.)     Patrick  v. 
How  may      Owens,    17   Tex.  278.      Judgments  of  foreign  countries  may  be 
aUfcM-eiC»-ntSOfProved: — 1-  B^  an  exemplification  under  the  great  seal;    2.  By  a 
country  be    copy  proved  to  be  correct;  3.  By  the  certificate  of  an  officer  author- 
proved?        ized  by  law,  which  certificate  must,  of  itself,  be  properly  authenti 
cated.     (Church  v.  Hubert,  2  Cr.  187.)      Phillips  v.  Lyons,  1  Tex. 
394. 

Define  the        The  "  Great  Seal  "  means  the  seal  of  the  nation,  whether  the 
great  seal?    COUntry  be  a  monarchy  or  a  republic.     Phillips  v.  Lyons,  1  Tex. 
394.     The  seal  of  one  of  the  States  of  the  American  Union,  is  not 
the  "  Great  Seal."     Id. ;  Wellborn  v.  Carr,  Id.  469. 

What  is  tho  In  a  suit  upon  a  judgment  obtained  in  courts  other  than  the 
courts  of  tlie  state>  the  limitation  prescribed  by  the  law  of  the 
forum  will  bar  the  action,  although  the  period  be  shorter  than  that 
prescribed  for  judgments  of  the  State  where  the  suit  was  brought. 
McElmoyle  v.  Cohen,  13  Pet.  312  ;  Story's  Conflict  of  Laws,  §  582; 
Robinson  v.  Peyton,  4  Tex.  278;  Pryor  v.  Moore,  8  Tex.  252; 
Bacon  v.  Howard,  20  How.  23.  First,  that  the  statute  of  limitations 
of  Georgia  can  be  pleaded  to  an  action  in  that  State,  founded  upon 
a  judgment  rendered  in  the  State  of  South  Carolina;  and,  secondly, 
that  in  the  administration  of  assets  in  Georgia,  a  judgment  rendered 
in  South  Carolina,  upon  a  promissory  note  against  the  intestate 
when  in  life,  should  not  be  paid  in  preference  to  simple  contract 
debts.  Mills  v.  Duryee;  McElmoyle  v.  Cohen,  13  Pet.  330.  Af 
firmed  in  a  Texas  case.  Bacon  v.  Howard,  20  How.  25.  There  is 
no  clause  in  the  Constitution  which  restrains  this  right  in  each  State 
to  legislate  upon  the  remedy  in  suits  on  judgment  of  other  States, 
exclusive  of  all  interference  with  their  merits.  Id.  The  act  of  the 
congress  of  Texas,  of  25th  June,  1845,  which  prescribed  the  time 
within  which  suits  on  judgments  rendered  in  foreign  States  should 
be  brought,  having  been  passed  before  annexation,  was  not  subject 
to  this  provision  of  the  Constitution  of  the  United  States;  but  if  it 
had  been,  the  law  would  not  have  been  unconstitutional.  Robinson 
v.  Peyton,  4  Tex.  278;  Pryor  v.  Moore,  8  Tex.  250;  Bacon  v. 
Howard,  20  How.  22.  It  has  been  held,  under  the  Texas  statute 
of  limitations,  that  the  same  rule  applies  to  a  judgment  of  a  sister 
State  as  to  a  judgment  of  this  State.  (Clay  v.  Clay,  13  Tex.  195; 
Allison  v.  Nash,  16  Id.  560  )  Spann  v.  Crummerford,  20  Tex.  220. 
Are  tho  Judgments  of  another  State  are  not  prima  facie,  but  conclusive 

judgments>  evidence  of  debt.  They  can  be  impeached  on  such  grounds  only  OR 
orfontiu-™  would  be  g°od  aghast  a  judgment  of  a  sister  State.  Clay  v.  Clay, 
bive  ?  13  Tex.  204.  The  judgments  rendered  before  a  justice  of  the  peace 

of  a  sister  State,  are  not  judgments  of  courts  of  record  within  this 
article,  unless  it  be  averred  and  proved  that  the  State  law  had  made 
them  so.  Bcal  v.  Smith,  14  Tex.  309.  The  opinion  reviews  the 
authorities  in  Cowen  &  Hill's  Notes  to  Phillips's  Evidence,  Part  2, 


Sec.  l.j  JUDGMENTS,    218.  217 

note  58.     And  see  Grant  v.  Bledsoe,  20  Tex.  458;  Thomas  v.  Rob 
inson,  3  Wend.  267. 

The  legislation  of  Congress  amounts  to  this :  that  the  judgment  What  does 
of  another  State  shall  be  record  evidence  of  the  demand  ;  and  that  ^  legisla- 
the  defendant,  when  sued  on  the  judgment,  cannot  go  behind  it  and  JJJJ1  amouat 
controvert  the  contract  or  other  cause  of  action  on  which  the  judg 
ment  is  founded;    that  it  is  evidence  of  an  established  demand, 
which,  standing  alone,  is  conclusive  between   the  parties   to   it. 
(Bank  of  the  State  of  Alabama  v.  Dalton,  9  How.  528.)     Norwood 
v.  Cobb,  20  Tex.  594. 

They  certainly  are  not  foreign  judgments ;  nor  are  they  domestic  Are  tho 
judgments  in  every  sense,  because  they  are  not  the  proper  founda-  judgments 
tion  of  final  process,  except  in  the  State  where  they  were  rendered,  domestic"? 
Besides,  they  are  open  to  inquiry  as  to  the  jurisdiction  of  the  court 
and  notice  to  the  defendant ;  but  in  all  other  respects  they  have  the 
same  faith  and  credit  as  domestic  judgments. 

Subject  to  those  qualifications,  the  judgment  of  a  State  court  is 
conclusive  in  the  courts  of  all  the  other  States  wherever  the  same 
matter  is  brought  in  controversy.  The  established  rule  is,  that  so 
long  as  the  judgment  remains  in  force  it  is  of  itself  conclusive  of 
the  right  of  the  plaintiff  to  the  thing  adjudged  in  his  favor,  and 
gives  him  a  right  to  process,  mesne  or  final,  as  the  case  may  be, 
to  execute  the  judgment.  D'Arc3r  v.  Ketchum  et  al.  11  Howard, 
165 ;  Webster  v.  Reid,  Id.  437  ;  Voorhees  v.  United  States  Bank, 
10  Peters,  449;  Huff  v.  Hutchingson,  14  Howard,  558;  Christmas 
v.  Russel,  5  Wall.  305 ;  Benton  v.  Bargot,  10  Sergt.  &  Rawle, 
240. 

To  render  a  defense,  or  plea  to  the  judgment  of  another  State 
good,  it  must  go  sufficiently  far  to  negative  the  reasonable  intend- 
ment  which  exists,  prima  facie,  in  favor  of  the  jurisdiction,  and  of 
the  regularity  of  the  proceedings.  (Shumway  v.  Stillman,  4  Cow. 
296 ;  6  Wend.  447  ;  Holt  v.  Alloway,  2  Blackford,  108 ;  Welch  v. 
Sykes,  3  Gil.  197  ;  Moreland  v.  Trenton  Ins.  Co.  4  Zabriskie,  222 ; 
Latterett  v.  Cooke,  1  Clarke,  1;  Black  v.  Black,  4  Brad.  174; 
Bissell  v.  Wheelock,  11  Gush.  277  ;  Buchanan  v.  Post,  5  Ind.  264.) 

1  Smith's  Leading  Cases,  Part  2,  pp.  1026,  1027. 

It  is  now  well  settled  that  judgments  of  one  State  of  the  Union  On  what 
may  be  controverted  in  another,   on  the  ground  that  the  court  pound  "iay 
which  pronounced  them  did  not  obtain  jurisdiction  over  the  parties  Jb"  ^n?nts 
by  due  service  of  process  or  notice.     (Reed  v.  Wright,  2  Iowa,  15 ;  trolled? 

2  Am.    Leading  Cases,  798,  4th  ed. ;  Price  v.  Ward,   1  Butcher, 
225;  Smith  v.  Smith,   17   111.  482;  Rape  v.  Heaton,  9  Wis.  328; 
Black  v.  Black,  4  Brad.  174 ;  Wright  v.  Boynton,   37   N.  H.  9  ; 
Judkius  v.  Union  Life  Ins.  Co.  Id.  470  ;  McLaurine  v.  Monroe,  30 
Mo.  462.)     1   Smith's  Leading  Cases,  Part  2,  p.  1025.     This  may 
be  not  only  proven  in  opposition  to  the  record,  but  also  against  its 
averments.  Id.  Baltzell  v.  Nosier,  1  Clarke,  588 ;  Gleason  v.  Dodd, 
4  Met.  335 ;    Carleton  v.  Bickford,  13    Gray,    591 ;    Norwood  v. 
Cobb,  15  Tex.  500 ;  S.  C.  24  Tex.  551 ;  Brinder  v.  Dawson,  1  Scam- 
mon,  541.   But,  contra,   see  Pritchet  v.  Clark.  5   Harrington,    63  ; 
Westcott  v.  Brown,  15  Ind.  83;  Rowe  v.  Hackett,  2  Bosworth. 

10 


218 


AUTHENTIC ATION,    219. 


[Art.  IV., 


How  are 
acts  of  the 
legislature 
authenti 
cated  ? 
Act  of 
May  '26, 
17'/0,  1  St. 
122. 


Judicial 
proceed 
ings? 


What  does 
the  seal  of 
State 
import  ? 

218. 


How  are 
judgments 
proved  ? 

218. 


Who  must 
certify  the 
clerk's  sig 
nature  ? 


570  ;  Lapham  v.  Brings,  1  Williams,  29 ;  Bank  of  Xorth  America  v. 
Wheeler,  24  Conn.  433. 

219.  CONGRESS  MAY  PRESCRIBE  THE  MANNER  OF  PROVING. — 
The  mode  of  proof  prescribed  under  this  clause  has  been  as  fol 
lows  : — 

u  The  acts  of  the  legislatures  of  the  several  States  shall  be 
authenticated  by  having  the  seal  of  their  respective  States  af 
fixed  thereto  :  That  the  records  and  judicial  proceedings  of  the 
courts  of  any  State  shall  be  proved  or  admitted  in  any  other  court 
within  the  United  States,  by  the  attestation  of  the  clerk,  and  the 
seal  of  the  court  annexed,  if  there  be  a  seal,  together  with  a  cer 
tificate  of  the  judge,  chief-justice,  or  presiding  magistrate,  as  the 
case  may  be,  that  the  said  attestation  is  in  due  form.  And  the 
said  records  and  judicial  proceedings,  authenticated  as  aforesaid, 
shall  have  such  faith  and  credit  given  to  them,  in  every  court 
within  the  United  States,  as  they  have,  by  law  or  usage,  in  the 
courts  of  the  State  from  whence  the  said  records  are  or  shall  be 
taken."  Paschal's  Annotated  Dig.,  Art.  3709. 

The  seal  of  the  State  imports  absolute  verity.  The  United 
States  v.  Amedy,  11  Wheat.  407;  The  United  States  v. 
Johns,  4  Dall.  416.  And  is  prima  facie  evidence  that  the  officer 
who  used  it  had  competent  authority  to  act.  No  other  authentica 
tion  is  necessary  than  the  seal  of  the  State.  Id.  The  usual  attes 
tation  of  the  enactment  and  signature  is  not  necessary.  United 
States  v.  Amedy,  11  Wheat.  408.  It  is  sufficient  that  their  exist 
ence  and  time  of  enactment  is  shown.  Id.  It  must  be  certified 
under  the  seal  of  the  State.  Craig  v.  Brown,  Pet.  C.  C.  354.  The 
laws  of  a  State  may  be  thus  certified  and  proved.  But  private 
laws,  and  special  proceedings  of  a  judicial  character,  are  matters  of 
fact,  and  must  be  proven  in  the  ordinary  manner.  Leland  v.  Wilk 
inson,  6  Pet.  317,  322.  A  statute  book  of  a  State,  in  the  State  De 
partment  at  Washington,  may  be  read  as  evidence  of  the  law.  The 
Commercial  &  Farmers'  Bank  of  Baltimore  v.  Patterson,  2  Cr.  C.  C. 
347. 

Under  the  Constitution  and  this  section,  a  judgment  recovered  in 
any  State  of  the  Union,  before  a  court  of  competent  jurisdiction, 
upon  due  notice  to  the  defendant,  is  not  to  be  regarded  in  any  other 
State  as  &  foreign,  but  as  a  domestic  judgment,  throughout  the  United 
States,  so  far  as  to  give  it  the  same  efl'ect  in  every  other  State. 
Baxley  v.  Dinah,  27  Penn.  State  R.  (4  Harris),  242,  247.  And  the 
State  court  will  take  notice  of  the  local  laws,  upon  which  the  judg 
ment  was  rendered,  in  the  same  manner  as  the  Supreme  Court  of 
the  United  States  does.  (7  Cr.  408;  3  Wheat.  234;  Baxley  v. 
Dinah,  27  Penn.  State  R.  (4  Harris),  243.)  State  of  Ohio  v. 
Hinchman,  27  Penn.  State  R.  (4  Harris),  483;  Rogers  v.  Burns,  Id. 
526.  And  if  the  certificate  state  that  it  is  in  "due  form,"  it  mat 
ters  not  that  the  judge  and  the  clerk  of  the  probate  court  were  the 
same  person.  Id.  But  as  a  surrogate  acts  as  a  clerk,  in  certifying 
his  proceedings,  and  as  he  also  acts  in  the  capacity  of  judge,  he 
must  certify  as  to  the  authentication.  (Catlin  v.  Underhill,  4  Mc 
Lean,  190.)  Ohio  v.  Hinchman,  27  Penn.  State  R.  484.  So  that  it 
results  that  when  the  judgment  of  a  court  of  record  is  proved  under 


Sec.  1.]  AUTHENTICATION,    219. 

the  act  of  Congress,  the  court  where  it  is  produced  will  take  the 
same  notice  of  the  laws  of  the  State  from  which  it  comes,  that  the 
court  which  rendered  the  judgment,  or  the  Supreme  Court  of  the 
United  States  would  take.  Id.  This  rule  seems  only  to  apply  to 
courts  of  general  jurisdiction.  1  Greenl.  Ev.  §  506.  It  does  not 
apply  to  judgments  rendered  before  a  justice  of  the  peace,  when  not 
courts  of  record.  (Cow.  &  Hill's  Notes  to  Phillips's  Ev.  Part  2, 
note  58.)  Beal  v.  Smith,  14  Tex.  309 ;  Grant  v.  Bledsoe,  20  Tex; 
458 ;  Snyder  v.  Wyse,  10  Barr,  157 ;  Warren  v.  Flagg,  2  Pick.  448; 
Robinson  v.  Prescott,  4  N.  H.  450;  Mahuren  v.  Blackford,  6  N.  H. 
567  ;  Silver  Lake  Bank  v.  Harding,  5  Ohio,  545  ;  Thomas  v.  Robin 
son,  3  Wend.  267.  Unless  they  be  courts  of  record.  Bissell  v. 
Edwards,  5  Day,  363 ;  Blodget  v.  Jordan,  6  Verm.  580 ;  Stark 
weather  v.  Loomis,  2  Verm.  573;  Scott  v.  Cleveland,  3  Monr.  62. 
But  the  proceedings  of  courts  of  chancery  and  probate,  as  well  as  TTow  may 
of  common  law,  may  be  thus  proved.  State  of  Ohio  v.  Hinchman,  chancery 
27  Penn.  State  R.  (4  Harris),  243;  Scott  v.  Blanchard,  8  Mart.  (N. 
S.)  106;  Balfour  v.  Chew,  5  Id.  517;  Johnson  v.  Runnells,  6  Id. 
621;  Ripple  v.  Ripple,  1  Rawle,  381  ;  Craig  v.  Brown,  Pet.  C.  C. 
352;  Hunt  v.  Lyle,  8  Yerg.  142;  Barbour  v.  Watts,  2  A.  K. 
Marsh,  290,  293.  Other  judicial  proceedings  besides  judgments  are 
included.  Hopkins  v.  Ludlow,  Phila.  R.  272. 

"  OF  ANY  STATE,"  does  not  apply  to  the  records  of  the  courts  of  What  means 
the  United  States.  Mason  v.  Lawrence,  1  Cr.  C.  C.  190.  But  the  "<>f  an.v 
same  rule  of  proof  is  applicable  to  these  courts.  Tucker  v.  Thomp- 
son,  3  McLean,  94.  And  may  be  proved  by  like  certificates.  Bu- 
ford  v.  Hickman,  Hemp.  232.  This  method  of  proof  is  not  exclu 
sive  of  any  other  which  the  States  may  prescribe.  Ohio  v.  Hinch 
man,  24  Penn.  State  R.  485;  Kean  v.  Rice,  12  S.  &  R.  203,  208; 
Raynham  v.  Canton,  3  Pick.  293  ;  The  State  v.  Stade,  1  D.  Chipm. 
303;  Biddle  v.  James,  6  Binn.  321;  Exparte  Poval,  3  Leigh,  816; 
Ellmore  v.  Mills,  1  Hayw.  359 ;  Baker  v.  Jenkins,  2  Johns.  Cases, 
119.  The  clerk  who  certifies  the  record,  must  be  the  clerk  of  the 
same  court,  or  of  its  successor ;  the  certificate  of  his  under  clerk, 
in  his  absence,  or  the  clerk  of  any  other  court  or  tribunal,  is  insuf 
ficient.  Sampson  v.  Overton,  4  Bibb,  409 ;  Lathorp  v.  Blake,  3 
Barr,  405 ;  Donahoo  v.  Brannon,  1  Overton,  328 ;  Schnertzell  v. 
Young,  3  H.  &  McHen.  502.  Where  the  clerk  certified  under  the 
seal  of  the  court,  that  he  was  clerk ;  and  the  judge  certified  that 
his  attestation  was  in  due  form,  no  other  evidence  of  the  usual 
form  of  attestation  can  be  received.  Harper  v.  Nichol,  13  Tex. 
161.  When  the  court  has  no  seal,  the  fact  should  be  certified  by 
the  court  or  the  judge.  Craig  v.  Brown,  Pet.  C.  C.  353.  The  seal 
must  be  annexed  to  the  record  itself;  not  to  the  judge's  certificate.  What  judge 
Turner  v.  Waddingt.cn,  3  W.  C.  C.  126.  The  certificate  to  the  must 
clerk's  attestation  must  be  given  by  the  judge,  if  there  be  but  one  ;  certiv  ? 
or  if  there  be  more  than  one,  then  by  the  chief-justice  or  presiding 
judge,  or  magistrate  of  the  court  from  whence  the  record  comes;  and 
he  must  possess  that  character  at  the  time  he  gives  the  certificate. 
A  certificate  that  he  is  the  judge  who  presided  at  the  time  of  the 
trial,  or  that  he  is  the  senior  judge  of  the  courts  of  law  in  the 
State,  is  deemed  insufficient.  Lathorp  v.  Blake,  3  Barr,  496 ; 
Stephenson  v.  Bannister,  3  Bibb,  369  ;  Kirklaud  v.  Smith,  2  Mart. 


220  AUTHENTICATION,  219.  [Art.  IV., 

(N".  S.)  407.     And  so  is  the  certificate  of  the  judge,  styling  him 
self  "  one  of  the  judges  of  the  court."     Stewart  v.  Gray,  Hemp. 
What  must   94;  Catlin  y.  Underbill,  4  McLean,  199.     The  certificate  of  the 

cSfe°of  Ihe  Judge  mUSt  State  that  the  attestation  of  the  clerk  is  in  due  form- 
judge  state?  Wigg  v-  Conway,  Hemp.  538.  "Which  means,  the  form  of  attesta 
tion  used  in  ths  State  from  whence  the  record  comes.  Craig  v. 
Brown,  Pet.  C.  C.  354.  And  such  certificate  of  the  judge  is  indis 
pensable  and  conclusive.  Ferguson  v.  Harwood.  7  C.  R.  408  ; 
Tooker  v.  Thompson,  3  McLean,  33 ;  Taylor  v.  Carpenter,  2  W.  & 
M.  4.  That  the  "  signature  is  in  the  clerk's  handwriting,"  is  not 
sufficient.  Craig  v.  Brown,  Pet  C.  C.  352.  Where,  however,  the 
record  of  a  judgment  of  a  State  court  is.ofiered  in  evidence  in  a 
circuit  court  sitting  in  the  same  State,  the  certificate  of  the  clerk, 
and  seal  of  the  court,  is  a  sufficient  authentication.  Mewster  v. 
Spaulding,  6  McLean,  24, 

What  A  judgment  of  a   State  court  has  the  same  validity,  credit, 

™HdHjJias  ana  effect,  in  every  other  court  within  the  United  States,   that 
merit1?  S~      ^  had  in  the   State  wherein    it   was  recovered;  and  whatever 
2i8        pleas  would  be  good  in  a  suit  thereon,  and  none  others,  can  be 
pleaded  in  any  other  court  within  the  United  States.     Hampton 
v.  McConnell,   3  Wheat.  234;    Mills  v.  Duryee,   7   Cranch,  481; 
Westerwelt  v.   Lewis,    2  McLean,    511;    Warren   Manuf.    Co.   v. 
^Etna  Ins.  Co.  2  Paine,  502;  2  Am.  Leading   Cases,  774.     But  the 
State  may  enact  statutes  of  limitation,   barring  such  judgment  in 
their  courts.     McKlmoyle  v.   Cohen,   13   Pet.  312;  Bank  State  of 
Ala.  v.  Dalton,  9  How.  522.     There  must  have  been  personal  ap 
pearance,   or  service  of  process.     D'Arcy  v.    Ketcham,   11  How. 
165  ;  Rogers  v.  Burns,  24  Penn.  State  R.  (3  Casey),  525.     Where 
judgment  was  rendered  in  a  sister  State  against  an  ancillary  ad 
ministrator,  it  is  no  foundation  for  an  action,  in  Texas,  against  the 
administrator  or  heir  of  the  same  estate.    (Story's  Conflict  of  Laws, 
3d  ed.  §  522;  Lightfoot  v.  Birkley,  2  Rawle,  431,  436-7.)     Jones 
What  faith    v.   Jones,    15    Tex.   464.      The   record,  when  duly  authenticated, 
and  credit  ?   shall  have  in  every  other  court  of  the  United  States  the  same  faith 
and  credit  as  it  has  in  the   State  court  from  whence  it  was  taken." 
(Mills  v.  Duryee,  7  Cr.  483)  Christmas  v.  Russell,  5  Wall.  302. 

l&nil  debet      Nil  debet  is  not    a   good  plea  to  such   a  judgment.      Id.  304. 

a  good  pica  ?  Nor  is  fraud  as  to  the  promise  on  which  the  judgment  was  ob 
tained  ;  nor  the  manner  of  obtaining  it.  (Bank  of  Australasia  v, 
Nias,  4  Eng.  Law  and  Eq.  252.)  Id. ;  Granger  v.  Clark,  22  Maine, 
130;  Anderson  v.  Anderson,  8  Ohio,  108.  They  cannot  be  at 
tacked  collaterally  by  the  parties  and  privies  to  the  record.  B.  & 
W.  Railroad  v.  Sparhawk,  1  Allen,  448;  Homer  v.  Fish,  1  Picker 
ing,  435 ;  McRae  v.  Mattoon,  13  Pickering,  57 ;  Atkinsons  v. 
Allen,  12  Vermont,  624 ;  Christmas  v.  Russel,  5  Wall.  306.  That 
is  where  it  appears  that  the  court  had  jurisdiction  of  the  cause, 
and  that  the  defendant  was  duly  served  with  process,  or  appeared 
and  made  defense.  (Hampton  v.  McConnel,  3  Wheaton,  332;  Na 
tions  et  ol.  v.  Johnson  et  al.  24  Howard,  203  :  D'Arcy  v.  Ketchum, 
11  Id.  165  ;  Webster  v.  Reid,  Id.  4GO.)  5  Wall.  302.  The  rule  is 
undeniable  that  the  judgment  or  decree  of  a  court  possessing  com 
petent  jurisdiction  is  final,  not  only  as  to  the  subject  thereby  de- 


Sec.  1.]  AUTHENTICATION,    219. 

termined,  but  as  to  every  other  matter  which  the  parties  might 
have  litigated  in  the  cause,  and  which  they  might  have  had  de 
cided.  (Dobson  v.  Pearce,  2  Kernan,  165.  Hollister  v.  Abbott, 
11  Foster,  448;  Rathbone  v.  Terry,  1  Rhode  Island,  77  ;  Topp  v. 
The  Bank,  2  Swan,  188;  Wall  v.  "Wall,  28  Mississippi,  413.) 
Christmas  v.  Russell,  5  WaU.  307. 

"  1.  From  and  after  the  passage  of  this  act,  all  records  and  ex- Act  of 
emplifications  of  office  books,  which  are  or  may  be  kept  in  any  March  27, 
public  office  of  any  State,  not  appertaining  to  a  court,  shall  be  Jjj^'  2  btat 
proved  or  admitted  in  any  other  court  or  office  in  any  other  State, 
by  the  attestation  of  the  keeper  of  the  said  records  or  books,  and 
the  seal  of  his  office  thereto  annexed,  if  there  be  a  seal,  together  what  is  t.ie 
with  a  certificate  of  the  presiding  justice  of  the  court  of  the  county  mode  of 
or  district,  as  the  case  may  be,  in  which  such  office  is  or  may  be  (^h Jrlhan 
kept ;  or  of  the  governor,  the  secretary  of  State,  the  chancellor,  judicial 
or  the  keeper  of  the  great  seal  of  the  State,  that  the  said  attes-  records  ? 
tation  is  in  due  form,  and  by  the  proper  officer ;  and  the  said  cer 
tificate,   if  given  by  the  presiding  justice  of  a  court,  shall  be 
further  authenticated  by   the  clerk  or  prothonotary  of  the  said 
court,  who  shall  certify,  under  his  hand  and  the  seal  of  his  office, 
that  the  said  presiding  justice  is  duly  commissioned  and  qualified  ; 
or  if  the  said  certificate  be  given  by  the  governor,  the  secretary  of 
State,  the  chancellor  or  keeper  of  the  great  seal,  it  shall  be  under 
the  great  seal  of  the  State  in  which  the  said  certificate  is  made. 
And  the  said  records  and  exemplifications,  authenticated  as  afore 
said,  shall  have  such  faith  and  credit  given  to  them  in  every  court 
and  office  within  the  United  States,  as  they  have  by  law  or  usage, 
in  the  courts  or  offices  of  the  State  from  whence  the  same  are  or 
shall  be  taken."    Paschal's  Annotated  Digest,  Art.  3710;  1  Bright 
ly 's  Dig.  p.  266. 

Where  a  conveyance  to  lands  in  Texas  was  dated  on  the  14th  How  are 
April,  1838,  and  executed  and  recorded  before  a  notary  public 
the  city  of  New  Orleans,  La.,  in  accordance  with  the  laws  of  Louis- 
iana,  a  copy  of  which  was  certified  by  the  notary's  successor, 
on  the  6th  March,  1851 ;  to  which  was  appended  the  certificate  of 
the  judge  of  the  district  court  of  New  Orleans,  that  the  certificate 
was  in  due  form,  and  by  the  proper  officer ;  and  the  official  certifi 
cate  of  the  clerk  of  that  court,  that  the  judge  was  such,  the 
authentication  was  in  accordance  with  this  act.  Watrous  v. 
McGrew,  16  Tex.  509,  512.  See  Paschal's  Annotated  Digest,  note 
508.  By  that  article  (Ord.  of  22d  January,  1836)  and  the  act 
of  the  provisional  government  of  Texas,  we  take  judicial  notice 
of  the  civil  code  and  Code  of  Practice  of  Louisiana.  Watrous  v. 
McGrew  (16  Tex.  512),  reviewed  and  affirmed.  White  v.  Burn 
ley,  20  How.  250.  It  was  a  civil  law  conveyance,  made  in  a 
notary's  book,  and  a  copy  furnished  to  the  grantee,  as  a  second 
original.  Id.  Sworn  copies  of  records  in  a  foreign  country  can 
be  given  in  evidence  when  better  evidence  cannot  be  procured. 
But  that  they  are  records,  must  be  shown  by  other  evidence. 
Bryant  v.  Kelton,  1  Tex.  435,  436.  The  laws  authorizing  the 
record  of  bills  of  sale  in  a  foreign  country  (as  Georgia  was  before 
annexation),  and  showing  who  was  the  keeper  of  the  records, 


222  CITIZENS,   219,   220.          [Art.  IV.,  Sec.  2, 

should  also  be  proven.     Id.     So  where  the  record  of  a  marriage, 

solemnized  by  a  justice  of  the  peace  in   Missouri,  was  certified 

under   this    act,    the    statute    which    authorized    the  justice    to 

solemnize  the  marriage,  should  also  have  been  proven :  as  also 

the  statute  authorizing  the  registration.     Smith  v.  Smith,  1  Tex. 

Can  records  625,  626.     The  records  are  among  the  public  writings  recognized 

be  proved     -fry  ^e  common  law  invested  with  an  official  character,  and  there- 

arySev£n  "    f°re  susceptible  of  proof  by  secondary  means,  but  which  are  not 

dence?          of  the  nature  of  judicial  records  or  judgments  ;  such  as  acts  and 

orders  of  the  executive  of  a  State ;  legislative  acts  and  journals  ; 

registers  kept  in  public  offices ;  books  which  contain  the  official 

proceedings  of  corporations,  if  the  public  at  large  are  concerned 

with  them;  parish  registers,    and  the  like.     Snyder  v.  Wise,   10 

Barr,  158.     The  certificate  must  state  that  the  attestation  is  in  due 

form,  and  by  the  proper  officer.     Drummond  v.  McGruder,  9  Cr. 

122;   1  Burr's  Trial,  98. 

Act  of  "  2.  All  the  provisions  of  this  act,  and  the  act  to  which  this  is  a 

March  27,      supplement,  shall  apply,  as  well  to  the  public  acts,  records,  office 

208.  books,  judicial  proceedings,  courts,  and  officers  of  the  respective 

territories   of  the  United   States,  and  countries   subject  to   the 

jurisdiction  of  the  United  States,  as  to  the  public  acts,  records, 

office  books,  judicial  proceedings,  courts,  and  offices  of  the  several 

States."     Paschal'a  Annotated  Dig.  Art.  3711. 

This   extension   is   a  constitutional  exercise   of  the  legislative 
powers  of  Congress.     Hughes  v.  Davis,  8  Maryland,  271. 

what  are         SEC.  II. — [l.]  The  citizens  of  each  State  shall  be 
ie|es  of l"     entitled  to  all  privileges  and  immunities  of  citizens  in 

citizens?        ,,  i  cu 

the  several  States. 

Who  are  22O.  "THE   CITIZENS  or  EACH   STATE." — See    Confederation, 

citizens  ?       ar^  Art.  IV.  p.  10.   "  I  find  no  definition,  no  authoritative  establish- 

274, 17, 18.     ment  of  the  meaning  of  the  phrase  (citizen  of  the  United  States), 

neither  by  a  course  of  judicial  decisions  in  our  courts,  nor  by  the 

continued  and  consentaneous  action  of  the  different  branches  of 

our  political  government."     Bates  on  Citizenship,  3. 

How  many        It  may  be  deduced  from  the  previous  definitions  and  all  the 
classes  of      authorities,  that  the  following  classification  of  "  CITIZENS"  may 

thei7UD  S°?     satisfy  most  stlldents  : 

jg9  '  1.  All  white  persons,  or  persons  of  European  descent,  who  were 

'  '  born  in  any  of  the  colonies,  or  resided  and  had  been  adopted  there 
rule  M  to  C  before  1776,  and  who  adhered  to  the  cause  of  independence  up  to 
colonists  of  the  fourth  of  July,  1776.  Paschal's  Annotated  Digest,  notes  147, 
1T76?  148i  238,  240,  350;  United  States  v.  Ritchie,  17  How.  538;  Orson 

274-        v.  Hoag,  3  Hill  (N.  Y.),  80-85;  Jackson  v.  White,  20  John,  313  ; 
277.        Jnglis  v.  The  Trustees  of  the  Sailors'  Snug  Harbor,   3  Pet.  99 ; 
Kelly  v.   Harrison,  20  Johns.  Cases,  29;   Dawson  v.  Godfrey,  4 
Cr.  321;  Fairfax  v.  Hunter,  7  Cr.  603;  Or  v.  Hodgson,  4  Wheat. 
45.'!.     The  males  of  these  are  eligible  to  the  Presidency. 
Who  of  the       2.  All  the  descendants  of  such  persons,  who  have  since  been 
native  born  ?  Dorn  in  any  of  those  thirteen  States,  or  in  any  new  State  or  Terri 
tory  of  the  United  States,  or  in  the  District  of  Columbia,  or  abroad, 


01.1.]  CITIZENS,  220.  223 

since  the  enabling  acts  of  Congress  (Indians  not  taxed  or  tribal 
Indians  excepted).  That  is,  all  free  white  persons  born  within 
the  jurisdiction  of  the  United  States,  and  all  born  abroad,  whose 
parents  are  citizens  absent  on  business.  Paschal's  Annotated 
Digest,  Art.  5410,  Act  of  10th  Feb.  1855;  10  St.  604. 

3.  All  the  free  white  or  European  inhabitants  of  Louisiana,  and  Who  of  the 
the  Creoles  of  native  birth,  residing  there  at  the  time  of  the  pur-  Louisiana 
chase  from  Napoleon  the  First,  by  the  treaty  of  30th  April,  1803, tei 

and  who  remained  in  and  adhered  to  the  United  States,  and  the 
descendants  of  all  such.  6  St.  Art.  III.  p.  202. 

4.  All  the  inhabitants  of  Florida,  at  the  date  of  the  treaty  of  What  of  the 
cession  of  24th  October,  1819,  who  adhered  to  the  United  States,  inhal.itnnts 
and  remained  in  the  country.     Treaty  with  Spain,   8  St.  p.  256,  of  Florida? 
Art.  VI.     This  included  those  who  had  left  their  native  domiciles, 

and  were  on  their  way  to  Florida  at  the  time  of  the  exchange  of 
flags.     Levy's  (Yulee's)  Case.     This  treaty  is  the  law  of  the  land,         19. 
and  admits  the  inhabitants  of  Florida  to  the  enjoyment  of  the  priv-        220. 
ileges,  rights,   and  immunities  of  citizens  of  the  United  States. 
(American  Insurance  Company  v.  Carter,  1  Pet.  542,  543;  and  see 
United  States  v.  Gratiot  [4  Pet.  526] ;  Cross  v.  Harrison,  1C  How. 
189);    S.  C.,  Whiting,  332. 

5.  All  the  free  inhabitants  of  Texas  at  the  date  of  the  annexation  Who  became 
of  that  republic  (29th  December,  1845),  descendants  of  Africans  citizens  i.y 
and   Indian  tribes  excluded.      9  St.    108;    Paschal's   Annotated  [1i1()cna01"cxa" 
Digest,  p.  40,  note  159;  Calkin  v.  Cocke,  14  How.  227.  Texas? 

When  the  Congress  of  the  United  States,  under  the  authority  to  what  was 
admit  new  States,  receives  a  foreign  nation  into  the  confederacy,  the  effect  of 
the  laws  of  these  respective  nations,  in  relation  to  the  naturaliza-  *" "rexas"1 
tion  of  individual  immigrants,  have  no  application  to  the  respective  U])0n  citi- 
citizens  of  each.     By  the  very  act  of  union,  the  citizens  of  each  zenship? 
become  citizens  of  the  government  or  governments  formed  by  this 
union.    Cryer  v.  Andrews,  11  Tex.  105.     See  Sabariego  v.  McKin- 229,  93. 
ney,  18  How.  240;  Paschal's  Annotated  Digest,  notes   148,  237- 
240. 

G.  All  the  inhabitants  of  California  and  other  territory  acquired  Who  of  the 
by  the  treaty  of  Guadalupe  Hidalgo,  on  the  2d  February,  1848  inhabitants 
(St.  929,  Art".  VIII.),  who  remained  and  adhered  to  the  United  JecameSti- 
States.    Sabariego  v.  McKinney,  18  Howard,  289;  Paschal's  Anno-zens? 
tated  Digest,  p.  39,  note  147. 

By  the  plan  of  Jguala,  adopted  by  the  revolutionary  government  Who  were 
of  Mexico,  24th  Feb.,  1821,  it  is  declared  that  "all  inhabitants  of  citizens  of 
New  Spain,  without  distinction,  whether  Europeans,   Africans,  or   IeXlco 
Indians,  are  citizens  of  this  monarchy,  with  a  right  to  be  employed 
in  any  post,  according  to  their  merit  and  virtues;"  and  that  '-the 
person  and  property  of  every  citizen  will  be  respected  and  pro 
tected  by  the  government."     We  are  also   referred  to  the  treaty 
of  Cordova,  of  24th  August,  1821,  and  the  declaration  of  independ 
ence  of  the  28th  September,  1821,  reaffirming  the  principles  of  the 
plan  of  Iguala.     Also  to  the  decree  of  the  24th  February,  1822,  by 
which  u  the  sovereign  Congress  declares  the  equality  of  civil  rights 
to  all  free  inhabitants  of  the  empire,  whatever  may  be  their  origin 
in  the  four  quarters  of  the  earth.1'     Also  to  the  decree  of  the  9th 


224  CITIZENS,    220.  [Art.  IV.,  Sec.  2, 

April,  1823,  which  reaffirms  the  three  guaranties  of  the  plan  of 
Iguala,  viz.: — 1.  Independence;  2.  The  Catholic  religion  ;  3.  Union 
of  all  Mexicans  of  whatever  race.  The  United  States  v.  Ritchie, 
17  How.  538.  The  decree  of  the  17th  September,  1822,  with  a 
view  to  give  effect  to  the  12th  article  of  the  plan  of  Jguala,  declared 
that  classification  of  the  inhabitants,  with  regard  to  their  origin, 
shall  be  omitted.  Id.  The  foregoing  solemn  declarations  of  the 
political  power  of  the  government,  had  the  effect,  necessarily, 
to  invest  the  Indians  with  the  privilege  of  citizenship,  as  effectu 
ally  as  had  the  declaration  of  independence  of  the  United  States 
of  1776,  to  invest  all  those  persons  with  these  privileges,  residing 
in  the  country  at  the  time,  and  who  adhered  to  the  interests  of  the 
colonies.  (Inglis  v.  Sailors'  Snug  Harbor,  3  Pet.  99,  121.)  Id.  540. 
Under  the  Constitution  and  laws  of  Mexico,  as  a  race,  no  distinc 
tion  was  made  between  the  Indians,  as  to  rights  of  citizenship 
and  the  privileges  belonging  to  it,  and  the  European  or  Spanish 
blood.  Id.;  Paschal's  Annotated  Digest,  note  350.  Therefore, 
all  these  inhabitants,  without  distinction  of  race  or  color,  seem  to 
have  been  made  citizens  of  the  United  States. 

Who  of  Arl-      7.  All  the  inhabitants  (Mexican  citizens)  of  Arizona,  at  the  date 

zona?  Of  the  Gadsden  treaty  (1854),  who  adhered  to  and  remained  in  the 

United  States.  10th  St.  1035,  Art.  V. 

Are  there         8.  A  few  who  have  been  naturalized  by  special  enactments,  as 

&"y  ]*         La  Fayette. 

special  en 
actments?  9.  All  the  slaves,  who,  by  the  laws  of  war,  the  proclamations  of 
Horwer  ^  ^e  Presidents,  the  oaths  of  amnesty  and  allegiance  required  by 
s'laveTand  President  Johnson,  the  thirteenth  amendment  of  the  Constitution 
free  persona  of  the  United  States,  and  the  various  amendments  of  the  Constitu- 
of  color  ?  tjons  Of  tne  fifteen  slave  States,  the  *\  eaties  with  the  Indians,  the 
Civil  Eights  Bill,  and  the  fourteesch  (?)  constitutional  amendment, 
6> 18-  have  become  citizens  of  the  United  States.  14  St.  358  (Treaties), 

pp.  72,  85,  102,  117  ;    Pasch?u's  Annotated  Digest,  Art.  5382  ;  note 
144,  p.  37  ;  note  120,  p.  24;  note  1062,  p.  786;  note  1174,  p.  930. 
Who  by  10.  All  persons  natur?iized  according  to  "  uniform  rule."     2  St. 

naturalize     153;  ^  811;  3  St.  53,  '259  ;  4  St.  69,  310  ;  9  St.  240;    10  St.  604  ; 
Qo          13   St.   957 ;  Paschal's  Annotated  Digest,  Arts.   5392-5412,  notes 

1168-1172,  pp.  919-925;  Story's  Const.  §  1806. 

What  rule  as     And  "  any  woman  who  might  be  lawfully  naturalized  under  the 
to  women  ?    ex}sting  laws,  married,  or  who  shall  be  married,  to  a  citizen  of  the 
United  States,  shall  be  deemed  and  taken  to  be  a  citizen. "     10  St. 
604,  §  2  ;  Paschal's  Annotated  Digest,  Art.  5411. 

Who  of  the       11.  All  such  Indians  as  have  ceased  their  tribal  relations,  and 

Indian          been  declared  citizens  of  the  United  States  by  treaties  or  acts  of 

Congress:    as    the    Choctaws,  who  remained  citizens  of  Missis- 

21,91,92.      sippi  and  Alabama,  under  the  treaty  of  1833;  "Wilson   v.  Waul, 

U.  S.  C.,  December  7,  1867,.6  Wall.  000.     The  Ottawas,  by  treaty  of 

June  24  and  July  28,    1862,   to  take  effect  five  years  from  the 

274.        ratification  thereof,   12  St.  315;  and  24th  June,  1862,  12  St.  1237, 

Art.  1  ;  the  Wyandottes,  31st  Jan.  1855,  10  St.  1159,  Art,  1 ;  Ottawas 

and  Chippewas,  of   Michigan,   11   St.  621,  Art.  5;  Chippewas,  2d 

Aug.  1855,  11  St.  633,  Art.  6;  Pottawattomies,  15th  Nov.  1861,  12 


Cl.  1.]  IMMUNITIES,  220,  221.  225 

St.  1191,  Art.  3;  Kickapoos,  28th  June,  1862,  13  St.  623,  Art.  3; 
Dela  wares,  4th  July,  1866,  14  St.  109. 

12.  Whether  a  corporation  is  "  a  citizen,"  within  the  meaning  of  Is  a  corpora 
this  clause   does  not  seem  to  be   clearly  determined.     Bank  of  tk)n  a  citi' 
United  States  v.  Devaux,  5  Or.  61;  Bank  of  Augusta  v.  Earle,  13   Cn2o5o. 
Pet.  586;  Slocomb  v.  Bank  of  Vicksburg,  14  Pet.  60;  Louisville 
Railroad  Co.  v.  Letson,   2  How.  556;    People  v.  Islay,  20  Barb. 
68  ;   Warren  Manufacturing  Co.  v.  JEtna  Ins.  (Jo.  2  Paine,  502  ; 
Holmes  v.  Nelson,  Phila.  R.  218,  219. 

As  they  are  citizens  of  a  State  who  may  sue  citizens  of  another 
State  ;  as  they  are  artificial  persons  ;  and  as  the  guaranty  secures 
the  rights,  whether  the  citizen  of  a  State  ever  goes  into  another 
State  or  not,  it  is  difficult  to  see  why  the  rule  will  not  apply,  that 
the  private  corporation  shall  have  all  the  privileges  and  immuni 
ties  which  like  corporations  have  in  the  State  where  the  right  is 
asserted,  not  where  the  artificial  person  is  created.  See  Mills  v. 
The  State,  23  Tex.  295,  302,  306  ;  Paschal's  Annotated  Digest, 
notes  202,  203,  639. 

It  will  thus  be  seen  that  all  citizens  of  the  United  States  are 
either  native  born  or  naturalized.  The  native  born,  who  owe 
allegiance  to  the  United  States  from  the  moment  of  their  birth, 
ought  to  be  citizens  ;  and  about  it  there  never  would  have  been 
any  dispute,  but  for  color  and  the  extreme  doctrines  of  States 
Rights,  which  maintained  that  there  was  no  national  citizenship. 
The  adopted  or  naturalized  citizens  have  been  made  so  by 
treaties,  statutes,  and  uniform  rule  of  naturalization. 


"PRIVILEGES  AND  IMMUNITIES."  —  And  the  words  righfo,  DeCne  prir- 
privikyes,  and   immunities,    are   abusively  used,  as  if  they  were  |le^s  a."'.1 
synonymous.     The  word  "rights"  is  generic,  common,  embracing     220  274 
whatever  may  be  lawfully  claimed.     Bates  on  Citizenship,  22. 

Privileges  are  special  rights  belonging  to  the  individual  or  class, 
and  not  the  mass.  Properly  an  exemption  from  some  duty,  an 
immunity  from  some  general  burden  or  obligation  ;  a  right 
peculiar  to  some  individual  or  body.  Ex  parte  Coupland,  26  Tex. 
420.  Immunities  are  rights  of  exemption  only  —  freedom  from  what 
otherwise  would  be  a  duty  or  burden.  Bates  on  Citizenship,  22. 

"  In  my  opinion  the  meaning  is,  that  in  a  given  State,  every 
citizen  of  every  other  State  shall  have  the  same  privileges  and  im 
munities  —  that  is,  the  same  rights  —  which  the  citizens  of  that 
State  possess.  They  are  not  subject  to  the  disabilities  of  alienage  ; 
they  can  hold  property  by  the  same  titles  by  which  every  other 
citizen  may  hold  it,  and  no  other  ;  discriminating  legislation  against 
them  would  be  unlawful."  Lemmon  v.  The  People  (Denio,  J.),  20 
N.  Y.  R.  608. 

But  the  clause  has  nothing  to  do  with  the  distinctions  founded 
on  domicile.  The  citizen  cannot  carry  the  legal  institutions  of  his 
native  State  with  him.  The  privileges  and  immunities  are  not 
limited  by  time,  but  are  permanent  and  absolute.  Any  law  which, 
should  deny  ingress  or  egress  to  citizens  would  be  void.  Id. 

The  States  possess  the  power  to  forbid  the  introduction  into 
their  territory  of  paupers,  criminals,  or  fugitive  slaves.     (Moore  v. 
Illinois,  14  How.  13.)     Lemmon  v.  The  People,  20  N.  Y:  R.  610. 
10* 


226  IMMUNITIES,  221.  [Art.  IV.,  Sec.  2, 

How  far  can      The  State  may  determine  the  status  of  persons  within  its  juris- 

deiormine     diction>  except  so  far  as  it  has  been  modified  or  restrained  by  the 

ttwettttui     Constitution  of  the  United  States.     (Groves  v.  Slaughter,  15  Pet. 

of  persons?   419;    Moore  v.  Illinois,  14   How.  13  ;   City  of  New  York  v.  Miln, 

11  Pet.  131,  139.)     Lemmon  v.  The  People,  20  N.  Y.  R.  603.    See 

Articles  of  Confederation,  ante,  p.  10,  Art.  IV.,  Federalist,  Nos.  42, 

80;  Story's  Const,  §  1098,  1804-1809. 

What  are  This  is  confined  to  those  privileges  and  immunities  which  arc,  in 
l^es'-md  their  nature  fundamental ;  which  belong,  of  right,  to  the  citizens  of 
immunities  a11  free  governments ;  and  which  have,  at  all  times,  been  enjoyed 
here  guar-  by  the  citizens  of  the  several  States  which  compose  this  Union, 
anteed?  from  the  time  of  their  becoming  free,  independent,  and  sovereign. 
They  may  be  all  comprehended  under  the  following  general 
heads  : — Protection  by  the  government;  the  enjoyment  of  life  and 
liberty,  with  the  right  to  acquire  and  possess  property  of  every 
kind,  and  to  pursue  and  to  obtain  happiness  and  safety, — subject, 
nevertheless,  to  such  restraints  as  the  government  may  justly  pre 
scribe  for  the  general  good  of  the  whole.  The  right  of  a  citizen 
of  one  State,  to  pass  through  or  to  reside  in  any  other  State, 
for  purposes  of  trade,  agriculture,  professional  pursuits,  or  other 
wise  ;  to  claim  the  benefit  of  the  writ  of  habeas  corpus ;  to  insti 
tute  and  maintain  actions  of  any  kind  in  the  courts  of  the  State; 
to  take,  hold,  and  dispose  of  property,  either  real  or  personal;  and 
an  exemption  from  higher  taxes  or  impositions  than  are  paid  by 
the  other  citizens  of  the  State,  may  be  mentioned  as  some  of  the 
particular  privileges  and  immunities  of  citizens,  which  are  clearly 
embraced  by  the  general  description  of  privileges  deemed  to  be 
fundamental;  to  which  may  be  added,  the  elective  franchise,  as 
regulated  and  established  by  the  laws  or  Constitution  of  the  State 
in  which  it  is  to  be  exercised.  Corficld  v.  Cory  ell,  4  Wash.  C.  C. 
380-1  ;  Smith  v.  Moody,  26  Ind.  302.  And  to  this  clause  of  the 
Constitution,  it  seems,  may  be  properly  referred  the  right  which, 
it  has  been  asserted,  is  possessed  by  a  citizen  of  one  State  to  pass 
freely  with  his  slaves  through  the  territory  of  another  State,  in 
which  the  institution  of  slavery  is  not  recognized.  United  States 
v.  Williamson,  4  Am.  L.  R.  19  ;  see  The  People  v.  Lemmon,  5 
Law  Rep.  486.  It  does  not  embrace  privileges  conferred  by  the 
local  laws  of  a  State.  Conner  v.  Elliott,  18  How.  591.  Such  as 
the  rights  of  representation  or  election.  Murray  v.  McCarty,  2 
Murif.  393.  And  see  the  questions  fully  discussed  in  Scott  v. 
Sandford,  19  How.  399. 

Can  a  State       Since  the  adoption  of  the  Constitution  no  State  can,  by  any  sub- 
make  a  citi-  sequent  law,   make  a   foreigner,   or  any  description  of  persons, 
Unite(l  °      citizens  of  the  United  States,  nor  entitle  them  to  the  rights  arid 
States?         privileges  secured  to  citizens  by  that  instrument.     Scott  v.  Sand- 
ford,  19  How.  393.     Negroes  are  not  ';  citizens  "  intended  to  be 
Negroes?      included  in  the  Constitution,  and  can  therefore  claim  none  of  the 
rights  and  privileges  which  that  instrument   provides   for   and 
secures  to  citizens  of  the  United  States.      LI.  4<H.      We  must  not 
National        corif  mud  the  rights  of  citizenship  which  a  State  may  confer  within 
citizenship  ?  [^  OW11  limits,  and  the  rights  of  citizenship  as  a  member  of  the 
Union.     Id.  405.     He  may  have  all  the  rights  and  privileges  of 
the  citizen  of  a  State,  and  yet  not  be  entitled  to  the  rights  and 


01.1.]  IMMUNITIES,  221.  227 

privileges  of  a  citizen  in  any  other  State.     Id.     Nor  have  the          6. 
States  surrendered  the  power  and  privilege  of  conferring  the  rights 
and  privileges  of  citizens,  by  adopting  the  Constitution  of  the 
United  States.     Each  State  may  still  confer  them  upon  an  alien,  or  Can  a  State 
any  one  it   thinks  proper,  or  upon  any  class  or  description  of  make  citi- 
persons ;  yet  he  would  not  be  a  citizen  in  the  sense  in  which  the  unTted 
word  is  used  in  the  Constitution  of  the  United  States,  nor  entitled  stutea? 
to  sue  as  such  in  one  of  its  courts,  nor  to  the  privileges  and  im 
munities  of  a  citizen  in  the  other  States.     Id.     The  State  cannot 
make  a  man  a  member  of  the  community  of  the  United  States  by 
making  him  a  member  of  its  own.     Id.  406. 

"  I  fully  concur  in  the  statement  that  the  description,  citizen  of  ike  19,  SO,  35,  63 
United  States,  used  in  the  Constitution,  has  the  same  meaning  that  69>  i?0- 
it  has  in  the  several  acts  of  Congress  passed  under  the  authority 
of  the  Constitution."     (William  Wirt,  Attorney-General,  1  Op.  7th 
Nov.  1821,  vol.  1,  p.  506.)     Bates  on  Citizenship,  pp.  17,  18. 

But  it  means  in  them  all  the  simple  expression  of  the  political 
status  of  the  person  in  connection  with  the  nation — that  he  is  a 
member  of  the  body  politic.  Id.  18. 

It  is  said  in  the  opinion  that  "  the  allegiance  which  the  free  man  Was  a  free 
of  color  owes  to  the  State  of  Virginia,  is  no  evidence  of  citizenship,  n 
for  he  owes  it  not  in  consequence  of  an  oath  of  allegiance."  (1  Op. 
506,  Wirt.)  "This  proposition  surprises  me;  perhaps  I  do  not 
understand  it.  The  oath  of  allegiance  is  not  the  cause  but  the 
consequence  of  citizenship.  Upon  the  whole  I  am  of  the  opinion 
that  free  persons  of  color  in  Virginia  are  not  citizens  of  the  United 
States,  within  the  intent  and  meaning  of  the  acts  regulating  the 
coasting  and  foreign  trade."  (I  Op.  510,  Wirt.)  Bates  on  Citizen 
ship,  19.  As  an  authority  this  opinion  is  rebutted  by  the  opinion 
of  Attorney-General  Legare,  of  15th  March,  1843.  (4  Op.  147.) 
Bates,  Id.  He  held  that  a  colored  man  was  a  citizen  of  the 
United  States,  entitled  to  a  pre-emption.  Id. 

"  If  this  be  so  (that  is,  if  they  be  negroes),  they  are  not  citizens  Were  free 
of  the  United  States,"  entitled  to  passports  under  the  act  of  18th  negroes  in 
August,  1856,  which  restricts  the  right  to  citizens.     (William  L.  entitled^ 
Marcy,  Sec'y  of  State,  4th  Nov.  1856.)     Bates  on  Citizenship,  20.  to  all  the 
But  see  the  certificate  offered,  which  is  equivalent  to  a  passport,  privileges? 
Id.     The  citizens  here  spoken  of  are  those  who  are  entitled  to  "  all 
the  privileges  and  immunities  of  citizens."     But  free  negroes,  by 
whatever  appellation  we  call  them,  were  never  in  any  of  the  States 
entitled  to  all  the  privileges  and  immunities  of  citizens,  and  conse 
quently  were  not  intended  to  be  included  when  this   word  was 
used  in  the  Constitution.     (The  State  of  Tennessee  v.  Ambrose,  1 
Meigs,  331.)     Bates  on  Citizenship,  21. 

The  meaning  of  the  language  is  that  no  privilege  by,  or  immunity  Construe  thj 
allowed  to  the  most  favored  class  of  citizens  in  said  State  shall  be  language? 
withheld    from   a    citizen   of    any   other   State.      (Tennessee    v. 
Ambrose,   1   Meigs,  331.)     Bates  on  Citizenship.      Either  a  free 
negro  is  not  a  citizen    in  the  sense  of  the  Constitution,  or.  if  a 
citizen,  he  is  entitled  to  all  the  privileges  and  immunities  of  the 
most  favored  class  of  citizens.     But  this  latter  consequence  will  be 
contended  for  by  no  one.     It  must  then  follow  that  they  are  not 


228 


CITIZENS   OF  STATES,    221,    222.    [Art.  IV.,  Sec.  2, 


How  does 
tne  Consti- 


of  citizens? 
ML 


274. 


What  was 


citizens.  (Tennessee  v.  Ambrose.  1  Meigs,  331.)  Bates  on  Citi- 
zenship.  But  the  Constitution  speaks  of  citizens  only,  without  any 
reference  to  their  rank,  grade,  or  class,  or  to  the  number  or 
magnitude  of  their  rights  and  immunities  —  citizens  simply,  with 
out  an  adjective  to  qualify  their  rights.  Id. 

Scott  v.  Sandford,  19  How.  393,  reviewed.  Id.  24.  It  is  shown 
that  it  only  determines  that  persons  of  African  descent,  whoso 
ancestors  were  of  pure  African  blood,  who  have  been  brought  to  this 
country  and  sold,  are  not  citizens  of  Missouri  in  the  sense  in  which 
that  word  is  used  in  the  Constitution.  Bates  on  Citizenship. 

Indeed  the  exclusive  right  of  the  State  of  Missouri  to  determine 
and  regulate  the  status  of  persons  within  her  territory  was  the  only 
point  in  judgment  in  the  Dred  Scott  case,  and  all  beyond  this  wras 
obiter.  (Ex  parte  Simmons,  4  Wash.  C.  C.  "R.  B96;  Groves  v. 
Slaughter,  15  Pet.  508;  Strader  v.  Graham,  10  How.  92.)  Lemmon 
v.  The  People,  20  N.  Y.  (6  Smith),  624. 

The  intention  of  this  clause  was  to  confer  on  the  citizens  of  each 


of  th 
guaranty  ? 


«r(ti"itenti°n  State  all  the  privileges  and  immunities  which  the  citizens  of  the 
same  would  be  entitled  to  under  the  like  circumstances.  (Story's 
Const.  §  1806.)  Smith  v.  Moody,  26  Ind.  301.  Among  which 
privileges  and  immunities  is  the  right  to  become  a  citizen  of 
any  one  of  the  several  States,  bv  becoming  a  resident  thereof. 
Id. 

A  citizen  of  the  United  States  residing  in  any  State  of  the  Union, 
is  a  citizen  of  that  State.  (Gassiea  v.  Ballou,  6  Peters,  761.)  Smith 
v.  Moody,  26  Ind.  301. 

The  thirteenth  article  of  the  Constitution  of  Indiana  denies  these 
rights  to  all  persons  of  African  descent.  Id. 

The  case  of  Scott  v.  Sandford,  19  How.  417,  422,  423,  quoted.   Id. 

The  opinions  of  Attorneys-General  Bates  and  Legare,  anfe, 
quoted.  Id.  303. 

The  opinion  in  Scott  v.  Sandford,  though  never  formally  over 
ruled,  is  now  disregarded  by  every  department  of  the  government. 
Id.  304.  Passports  are  granted  to  free  men  of  color;  Congress  de 
clares  them  to  be  citizens ;  the  Supreme  Court  of  the  United  States 
admits  them  to  its  bar.  Id. 

At  the  time  of  the  adoption  of  the  Constitution,  all  free  native- 
born  inhabitants  of  the  States  of  New  Hampshire,  Massachusetts, 
New  York,  New  Jersey,  and  North  Carolina,  though  descended 
from  African  slaves,  were  not  only  citizens  of  those  States,  but 
18.  such  of  them  as  had  the  other  necessary  qualilications  possessed 
the  franchise  of  electors  on  equal  terms  with  other  citizens.  (The 
State  v.  Manuel,  4  Dev.  Bat.  20.)  Smith  v.  Moody,  26  Indiana, 
304. 

Who  were  222.    "OF  CITIZENS  IN    THE   SEVERAL    STATES." — This    W3S    m- 

ineunt  by  tended  to  secure  to  the  citizens  of  every  State,  within  every  other, 
the 'several  ^ie  privileges  and  immunities  (whatever  they  might  be)  accorded  in 
Suites  ?  each  to  its  own  citizens,  and  no  others.  Lemmon  v.  The  People, 
144,  221,  206.  20  N.  Y.  (6  Smith),  627.  See  Confederation,  Art.  IV.  ante,  p.  10. 

It  did  not  mean  that  the  citizens  of  Virginia,  who  were  entitled 

221.        to  hold  slaves  there,  could  bring  those  slaves  into  New  York  and 

hold  them  as  such,  in  accordance  with  the  laws  of  Virginia.     Lem- 


Is  Scott  v. 

Sandford 

law? 

6. 
274. 


01.  1,  2.]  CITIZENS   OF  STATES,  222.  229 

mon  v.  People,  20  N.  Y.  (6  Smith),  627.     Jackson  v.  BtiUoch,  12 
Conn.  38. 

As  a  general  principle,  the  slaves  who  were  carried  from  slave  to  What  was 
free  States,  with  the  permission  of  their  masters,  and  permitted  to  ^®  .^^  uf 
reside  there,  obtained  their  freedom ;  and  the  owners  could  not  slaves"? om 
resume  their  control  over  them  as  slaves  upon  the  return  of  such  a  slave  to  a 
slaves  to  such  slave  States.     Harry  v.  Lyles,  4  H.  &  McHen.  215  ;  fl<ee  Sute? 
Baptiste  v.  Volundrum,  5  H.  &  Johns.  86;  Davis  v.  Jaquin,  Id.  100, 
107:    Respublica  v.  Blackmore,  2   Yates,  234;  C.  S.,  Addis.  284; 
David  v.   Porter,  4  II.  &  McHen.  418;  Gilmer  v.  Fanny  Gilmer, 
Id.  143  ;  Lewis  v.  Fullerton,  1  Rand.  15  ;  Butler  v.  Hopper,  1  Wash. 
C.  C.  499;  Vincent  v.  Duncan,  2  Missouri,  214;  Milly  v.  Smith.  Id. 
36;  Winney  v.  Whitesides,  1  Id.  472;    Julia  v.  McKinney,  3   Id. 
270;    Nut.  v.  Ruddie,   Id.  400;  Vincent   v.   Duncan,  2   Id.  214; 
Hank  in  v.  Lydia,  2  A.  K.  Marshall,  467.     See  the  cases  fully  col 
lected  in  Wheeler's  Law  of  Slavery,  335-388  ;  Cobb  on  Slavery. 

The  result  of  the  cases  seems  to  be  that  the  citizen  of  one  State 
does  not  carry  the  local  laws  of  his  State,  which  are  repugnant  to         221. 
the  laws  of  his  new  domicile  into  that  State.     But  when  he  goes  13,  226-223. 
into  a  State,  he  is  entitled  to  all  the  rights  and  privileges  of  the 
citizens  of  that  State,  no  more,  no  less.      He  is  not  entitled  to 
vote,  as  one  of  his  privileges,  until  the  Constitution  or  laws  of  that 
State  give  him  the  power.     See  Story's  Conn.  Laws,  §  321-327. 

It  is  fresh  in  the  memory  of  all  that  the  Southern  school  occu 
pied  the  ground  that  this  was  not  the  law  as  to  the  Territories,  but 
that  the  citizen  might  carry  his  slave  there,  and  hold  him  as  a 
slave,  despite  any  law  of  Congress  or  the  Territories,  until  a  State 
Constitution  was  formed  for  admission  into  the  Union. 

The  opposite  extreme  held,  that  neither  Congress  nor  the  Terri-  226-223. 
torial  legislature,  nor  both  combined,  could  legalize  slavery  in  the 
"  common  territory ;"  but  that  it  could  only  be  legalized  by  a  State 
Constitution,  when  the  people  were  about  to  apply  for  admission 
into  the  Union.  A  subject  which  led  to  such  opposite  absurdi 
ties,  might  well  be  called  a  very  obscuring  one.  See  Cobb  on 
Slavery ;  passim,  Douglas's  Speeches  for  ten  years ;  the  Debates 
in  Congress  from  1848  to  18GO;  Benton's  Thirty  Years,  and  the 
political  platforms  everywhere.  Scott  v.  Sandford,  19  How.  393. 

This  "  GUARANTY  "  applies  to  the  people  of  the  United  States, 
whether  existing  in  States  complete,  or  in  inchoate  States  called        226. 
Territories.    6  Op.  304. 

The  fourth  article  of  the  Confederation  quoted  (ante,  p.  10).  Con 
gress  refused  to  insert  the  word  ;'  white."  Id.  It  is  clear  that  p.  9. 
under  the  Confederation,  and  at  the  time  of  the  adoption  of  the 
Constitution,  free  colored  persons  of  African  descent  might  be,  and 
by  reason  of  their  citizenship  in  certain  States  were,  citizens  of 
the  United  States.  Smith  v.  Moody,  26  Ind.  305  ;  Bates  on  Citi 
zenship. 

[2.]  A  person   charged  in  any  State  with  treason,  What  are 
felony,  or  other  crime,  who  shall  flee  from  justice,  and  tionsa^to 
be  found   in  another  State,  shall,  on   demand  of  thef£"c 
executive  authority  of  the  State  from  which  he  fled, 


230 


FUGITIVES,  223,  224.         [Art.  IV.,  Sec.  2, 


What  does 
"  person" 
mean  ? 
16,  '20,  21,  22, 
2*,  35,  46, 
144,  109,  220, 
226,  228. 
215,  192,  194, 
110-116. 
For  what 
crimes  ? 


213,  193,  194. 


be  delivered  up,  to  be  removed  to  the  State  having 
jurisdiction  of  the  crime. 

223.  "  A  PERSON,"  in  practice,  has  been  held  to  extend  to  free 
and  slave;  naturalized  and  not  naturalized;  white,  Indian,  and 
colored;  male  and  female;  in  fact,  not  only  to  the  "people," 
the  "  numbers,"  or  "  inhabitants  ;"  the  "citizens,"  "aliens,'7  and 
"  all  others;"  but  to  every  manner  of  "PERSON,"  whether  resident, 
or  not,  who  is  "  CHARGED  IN  ANY  STATE  WITH  TREASON,  FELONY,  on 

OTHER  CHIME." 

It  is  not  necessary  that  the  crime  charged  should  constitute  an 
offense  at  the  common  law.  In  the  matter  of  William  Fetter,  3 
Zabr.  311.  It  is  enough  that  it  is  a  crime  against  the  laws  of  the 
State  from  which  he  fled.  Johnson  v.  Riley,  13  Ga.  97;  In  the 
matter  of  Clark,  9  Wend.  221 ;  Commonwealth  v.  Daniels,  6  Penn. 
L.  J.  428  ;  Hayward's  Case,  1  Am.  L.  J.  231.  The  words  embrace 
every  act  made  punishable  by  the  laws  of  the  State.  Kentucky  v. 
Ohio,  24  How.  99.  Misdemeanors  as  well  as  treason.  Id.  100, 
102.  By  the  act  of  12th  Feb.  1793,  1  St.  302,  provision  is  made  to 
carry  into  practical  effect  this  provision  of  the  Constitution.  John 
son  v.  Riley,  13  Ga.  133.  All  that  is  required  is  to  produce  the 
copy  of  an  indictment  found,  or  an  affidavit  made,  before  a  magis 
trate  of  such  State,  charging  the  person  so  demanded  with  having 
committed  a  crime  against  the  governor.  Id. 

8.  224.  "Wno  SHALL  FLEE  FROM  JUSTICE  AND  BE  FOUND  IN  AN- 

What  is  "to  OTHER  STATE." — To  FLEE  is  to  run  away,  as  from  danger  or  evil ;  as 
"  the  wicked  flee  when  no  man  pursueth."  Webster's  Die.,  FLEE. 
Here,  to  be  "  found  in  another  State "  is  sufficient  without  any 
actual  flight. 

A  fugitive  from  justice  may  be  arrested  and  detained  until  a 
formal  requisition  can  be  made  by  the  proper  authority.  Common 
wealth  v.  Deacon,  10  S.  &  R.  135;  Dow's  Case,  6  Harr.  39;  In  the 
matter  of  William  Fetter,  3  Zabr.  311;  The  State  v.  Buzine,  4  Har- 
ring,  572;  In  the  matter  of  Clark.  9  Wend.  221;  Goodhue's  Case, 
1  City  Hall  Recorder,  153;  Gardner's  Case,  2  Johns.  477;  Com 
monwealth  v.  Wilson,  Phila.  R.  80.  The  executive  upon  whom  tho 
demand  is  made,  cannot  go  behind  the  demand  and  acconfpanying 
charge  of  the  governor  demanding,  to  determine  whether,  by  the 
laws  of  his  own  State,  the  offense  charged  is  a  crime.  Each  State, 
as  a  sovereign,  must  determine  for  itself,  what  is  a  crime.  Johnson 
v.  Riley,  13  Ga.  133-4.  And  see  the  case  of  McGoffin,  Governor 
of  Kentucky  v.  Dennisx>n,  Governor  of  Ohio,  24  How.  99,  100,  ion. 
The  duty  of  the  executive  on  whom  the  demand  is  made,  is 
merely  ministerial.  Id.  This  article  was  substantially  copied  from 
an  article  of  the  Confederation,  which  required  tho  demand  to  be 
made  upon  the  executive.  The  same  rule  was  intended.  Id. 
102-3;  ante,  Art.  III.  p.  10.  The  right  to  demand  is  absolute; 
and  the  duty  to  deliver,  correlative.  Id.  103.  The  proceedings 
should  correspond  to  the  act  of  12th  February.  179:>.  Id.  Tho 
governor  on  whom  the  demand  is  made,  cannot  look  to  the  suffi 
ciency  of  the  indictment.  Id  106-7.  While  the  act  of  Congress 

conclusive?  Declares  that  it  is  the  "duty"  of  the  governor  to  comply  with  tho 


lice 


Upon  what 
may  the 
fugitive  be 
arrested  r 


Is  the  in 
dictment 


01.  2.]  FUGITIVES,  224,  225.  231 

demand,  there  is  no  power  in  the  Supreme  Court  of  the  United 
States  to  enforce  the  performance  of  this  moral  duty.  Kentucky  v. 
Ohio,  24  How.  107-8. 

The  relator  insists  on  his  discharge,  on  the  ground  of  insufficiency  What  nre 
and  illegality  of  the  warrant ;  in  this,  that  it  does  not  show  by  recital,  the  reqai- 
that  the  representation  and  demand  of  the  governor  of  the  State  of  S1 
Arkansas,  was  accompanied  with  a  copy  of  an  indictment  found,  or 
an  affidavit  made,  before  some  magistrate  of  the  State  of  Arkansas, 
certified   to   by  said   executive   as   being  duly  authenticated,  and 
charging  the  relator  with  having  committed  the  crime  of  forgery 
within  the  said  State ;  and  we  are  of  opinion,  that,  on  the  ground 
set   forth,  he  is  entitled  to  his  discharge.      Ex  parte  Thornton,  9 
Tex.  614-5.     The   chief-justice  quoted  the  foregoing  clause  of  the 
Constitution  and  the  act  of  1793,  and  concluded  the  things  neces 
sary  are: — 1.  A  copy  of  the  indictment  found,  or  affidavit  made, 
charging  the  alleged  fugitive  with  having  committed  the  crime.     2. 
The  certificate  of  the  executive  of  Arkansas,  that  such  copy  was 
authentic.     (Ex  parke  Clark,  9  Wend.  222,  cited.)     The  counsel  for 
Thornton  had  relied  upon  this  case,  and  Buckner  v.  Finley,  2   Pet. 
586;  Ex  partc  Holmes,  12  Vt.  631 ;  Case  of  Jose  Ferriara  de  los 
Santos,  2  Brock.  493  ;  The  matter  of  Short,  10  S.  &  R.  125 ;  Holmes  v. 
Jennison,  1 4  Pet.  540  ;  Warden  v.  Abell,  2  Wash.  Ya.  359,  380.    The 
alleged  crime  must  have  been  committed  in  the  State  from  which  the 
party  is  claimed  to  be  a  fugitive;  and  he  must  be  actually  a  fugitive 
from  that  State.    Exparie  Joseph  Smith,  3  McLean,  133;  Hay  ward's 
Case,  1  Am.  L.  J.  231  ;  In  the  matter  of  William  Fetter,  3  Zabr.  311. 
The  affidavit,  when  that  form  of  evidence  is  adopted,   must  be  at  What  must 
least  so  explicit  and  certain  that,  if  it  were  laid  before  a  magistrate,  the  affidavit 
it  would  justify  him  in  committing  the  accused  to  answer  the  charge.  conuin 
6  Penn.  L.  J.  414,  418.     It  must  state  positively  that  the  alleged 
crime  was  committed  in  the  State  from  which  the  party  is  alleged 
to  be  a  fugitive,  and  that  the  party  is  actually  a  fugitive  from  the 
State.     Exparte  Smith,  3  McLean,  121,  132;  Fetter's  Case,  3  Zabr. 
311;  In  the  matter  of  Hayward,  1   Sandf.  S.  C.  701;    Degant  v. 
Michael,  3  Cart.  396. 

For  the  general  principles,  as  an  international  question,  see  1 
Kent's  Com.  Lect.  2,  p.  3(! ;  Matter  of  Washburn,  4  John.  Ch. 
11.  106;  Rex  v.  Bull,  1  Am.  Jurist,  297;  Vattel,  B.  2,  §  76,  77; 
Rutherforth  Inst.  B.  2,  ch.  9,  §  12  ;  Commonwealth  v.  Deacon,  10 
Serg.  &  R.  125;  I  Am.  Jur.  297;  Commonwealth  v.  Green,  17 
Mass.  515.  546-548;  In  re  Fetter,  3  Zabr.  311 ;  Executive  Docu 
ment  of  1840,  1  Sess.  26  Cong.  No.  99. 

225.  "SHALL  ON"  DEMAND,  ETC.,  BE  DELIVERED  UP." — A  pre 
cept  by  the  governor  of  a  State,  appointing  an  agent  to  receive  a 
fugitive  from  justice,  reciting  that  lu  had  made  a  requisition, 
agreeably  to  the  Constitution  and  laws  of  the  United  States,  upon 
the  governor  of  the  State  into  which  the  fugitive  was  alleged  to 
have  escaped,  is  prima  facie  evidence,  for  the  prjtoction  of  the 
agent,  of  the  truth  of  the  recitals.  Commonwealth  v.  Hall,  9  Gray 
(Mass.),  267.  A  prima  facie  case  is  all  that  is  necessary.  Somerset's 
Case,  20  State  Trials  79-  Story's  Const.  §  1812. 


232  FUGITIVE  SLAVES,    226,    227.      [Art.  IV.,  Sec.  2, 

And  a  warrant  issued  by  tho  governor  on  whom  the  demand  is 
made,  to  "  take  and  receive  into  custody  "  a  fugitive  from  justice, 
authorizes  him  to  arrest  such  fugitive ;  and  is  not  repugnant  to  the 
Constitution  and  laws  of  this  State  or  of  the  United  States.     Com 
monwealth  v.  Hall,  9  Gray  (Mass.),   267.     The  foreign  extradition 
jurisdiction  is  purely  political ;  and  does  not  properly  belong  to  the 
judiciary,   but   to  the   executive.      (In  re   Kaine,   14   How.   103.) 
Curtis'  Com.  §  94,  95.     And  see  Holmes  v.  Jennison,  14  Pet.  540 ; 
S.  C.,  Curtis'  Com.  §  218,   note  1.     The  governor  may  mean  the 
"executive  authority  of  a  State,"  under  the  U.  S.  statute  of  Feb.  12, 
1793.     (1  St.  302;   1  Brightly's  Dig.  293.)     Commonwealth  v.  Hall, 
223.        9  Gray  (Mass.),   262.     Where  the  warrant  is  issued,   the  courts 
cannot  go  behind  it ;   the  only  question  they  can  entertain  is  as  to 
the  identity  of  the    alleged  fugitive.     Pennsylvania  v.  Daniels,  G 
Penn.  L.  J.  417,  note  ;  The  State  v.  Buzine,  4  Harring.  572. 
Suppose  the      Where  a  defendant  is  brought  into  a  State  as  a  fugitive  from 
has*  be  en       justice,  after  acquittal,  or  conviction  and  pardon,  he  cannot  be  sur- 
convicted      rendered  to  the  authorities  of  another  State  as  a  fugitive,  but  must 
and  par-        be  allowed  an  opportunity  to  return  to  the  State  in  which  he  is 
doned?         domiciled.      Daniels'    Case,    cited   in   Binn's   Justice,    267.      The 
agent  appointed  under  the  second  section  of  the  act  of  12th  Feb., 
1793  (1  Stat.  302),  is  not  liable  to  an  action  for  false  imprisonment 
by  reason  of  any  irregularity  in  the  warrant  of  arrest.    Johnston  v. 
Vanamringe,  2  Black  wood,  311. 

whiit  are          [3.]  No  person  held  to  service  or  labor  in  one  State, 
tionsaAo    under  the  laws  thereof,  escaping  into  another,  shall, 

persona  .  „  ,.-,.-, 

held  to  in  consequence  01  any  law  or  regulation  therein,  be 
discharged  from  such  service  or  labor,  but  shall  be 
delivered  up  on  claim  of  the  party  to  whom  such  ser 
vice  or  labor  may  be  due. 

What  is  a          226.  "  A  PERSON,"  here  is  limited,  in  practice,  to  apprentices 
person?         au(j  fugitive  slaves;  but  there  is  no  sound  reason  why  it  should 

not  apply  to  all  the  domestic  relations,  where  the  party  is  "held 
227,  224.        to  service  or  labor."     See  Act  of  12th  Feb.,  1793, 1  Stat.  302;  Act 

of  18th  Sept.,  1850,  9  Stat.  462  ;   1  Brightly's  Dig.  294,  295 ;  6  Op. 

309  ;  3  Black.  Com.  4. 

What  means      "  IN  ONE  STATE." — This  extends  to  the  Territories,  District  of 
in  a  State  ?    Columbia,  and  the  Indian  Territory.    See  6  Op.  302-30G  ;  3  Op.  370. 

The  word  "State,"  in   Loth  clauses  of  this  article  is  pari  mate- 
225,  226,  2.     rid,  and  it  possesses,  in  some  of  its  relations,  a  meaning  broader 

than  its  apparent  or  usual  signification.     6  Op.  304,  which  fully 

discusses  the  whole  subject. 

What  means       227."  UNDER  THE  LAWS  THEREOF  ESCAPING  INTO  ANOTHER." — 

escaping?      «  Escaping,"  here  is  not  so  comprehensive  as  "  fleeing."  in  the  last 

2'22-        clause,  since  if  the  slave  be  carried  by  his  master  into  another 

State,  and  there  left,  he  obtains  his  freedom.     See  note  222  ;  Web 
ster's  Dictionary,  ESCAPE. 
226.  This  includes  apprentices.     Boaler  v.  Cummins,   1   Am.   L.   R. 

654.     It  does  not  extend  to  the  case  of  a  slave  voluntarily  carried 


Cl.  3.]  FUGITIVE  SLAVES,   227.  233 


by  his  master  into  another  State,  and  there  leaving  him,  under  the  Did 
protection  of  some  law  declaring  him  free.     Butler  v.  Hopper,  1  to  slaves 
Wash.  C.  C.  499;  Vaughan  v.  Williams,  3  McLean,  530  ;  Pierce's  aiioVedTo 
Case,  1  Western  Leg.  Ob.  14;  Kauffman  v.  Oliver,  10  Barr,  517  ;  govotaa- 
Strader  v.  Graham,  10  How.   82  ;   Miller  v.  McQuerry,  5  McLean,  taril>;  into  '  » 
4130;    In  the  matter  of  Perkins,  2   Cal.  424;  Commonwealth  v. 
Albert!,  2  Par.  505.    Slavery  is  a  municipal  regulation  ;  is  local  ;  and 
cannot  exist  without  authority  of  law.     Millef  v.  McQuerry,  5  Mc 
Lean,  4G9.     But  the  question,  whether  slaves  are  made  free  by 
going  into  a  State  in  which  slavery  is  not  tolerated,  with  the  per 
mission  of  their  master,  is  purely  one  of  local  law,  and  to  be  deter 
mined  by  the  courts  of  the  State  in  which  they  may  be  found. 
Strader  v.  Graham,  10  How.  82  ;  Scott  v.  Sandford,  19  How.  396. 
See  In  the  matter  of  Perkins,  2  Cal.  424. 

It  was  formerly  held  that  the  President  had  no  power  to  cause  As  to  slaves 
fugitive  slaves,  who  had  taken  refuge  among  the  Indian  tribes,  to  in  Indian 
be  apprehended  and  delivered  up  to  their  owners.     3  Opin.  370.  country* 
But  this  has  been  since  overruled,  and  it  is  now  held  that  such 
fugitive  in  the  Indian  territory,  being  there  unlawfully,  and  as  an 
intruder,  is  subject  to  arrest  by  the  executive  authority  of  the 
United  States  ;  and  if  in  such  territory  there  be  no  commissioner 
of  the  United  States  to  act,  the  claimant  may  proceed  by  recapture 
without  judicial  process.     6  Opin.  302. 

The  owner  of  a  slave  is  clothed  with  full  authority,  in  every  what  were 
State  of  the  Union,  to  seize  and  recapture  his  slave,  whenever  he  the  owner's 
can  do  it  without  a  breach  of  the  peace,  or  any  illegal  violence.  {^/lav^ 
Prigg  v.  Pennsylvania,  16  Pet.  539  ;  Norris  v.  Newton,  5  McLean, 
92;  Johnson  v.  Tompkins,  Bald.  571;  Commonwealth  v.  Taylor,  2 
Am.  L.  J.  258  ;  Van  Metre  y.  Mitchell,  7  Penn.  L.  J.  115.  But  it  is 
under  the  Constitution  and  acts  of  Congress  only,  that  the  owner  of 
a  slave  has  the  right  to  claim  him  in  a  State  where  slavery  does  not 
exist.  There  is  no  principle  in  the  common  law,  in  the  law  of  nations, 
or  of  nature,  which  authorizes  such  a  recapture.  Giltner  v.  Gorham, 
4  McLean,  402.  The  Constitution,  however,  recognizes  slaves  as 
property,  and  pledges  the  federal  government  to  protect  it.  Scott 
v.  Sandford,  19  How.  395.  A  statute  which  punishes  the  harbor 
ing  or  secreting  a  fugitive  slave,  is  not  in  conflict  with  the  Con 
stitution  or  laws  of  the  United  States.  Moore  v.  Illinois,  14  How. 
13.  Nor  does  the  Constitution  exempt  fugitive  slaves  from  the 
penal  laws  of  any  State  in  which  they  may  happen  to  be.  Com 
monwealth  v.  Hollo  way,  3  S.  £  R.  4. 

The  Constitution  confers  on  Congress  an  exclusive  power  to  is  the  power 
legislate  concerning  fugitive  slaves  ;  and  the  act  of  1793  was  con-  of  Congress 
stitutional  and  valid.  Prigg  v.  Pennsylvania,  16  Pet.  539;  In  the  e 
matter  of  Martin,  2  Paine,  348  ;  Jones  v.  Vanzandt,  2  McLean, 
612  ;  In  the  matter  of  Susan,  2  Wheat.  Cr.  Cases,  594. 

The  Constitution  and  laws  do  not  confer,  but  secure,  the  right 
to  reclaim  fugitive  slaves  against  State  legislation.  Johnson  v. 
Tompkins,  Bald.  571;  Giltner  v.  Gorham,  4  McLean,  402.  The 
act  of  18th  Sept.  1850,  was  constitutional  and  valid.  Ableman  v. 
Booth,  21  How.  526;  Sims'  Case,  7  Cush.  285  ;  Long's  Case,  3  Am. 
L.  J.  201  ;  1  Blatch.  685  ;  6  Op.  713. 


234 


FUGITIVE  SLAVES,  228.      [Art.  IV.,  Sees.  2,  3, 


Was  "  slave' 
used  in 
the  original 
Constitu 
tion  ? 
226,  21. 


By  what 
character  of 
proceeding 
is  the 
delivery 
enforced  ? 
225. 

Through 
the  State  or 
the  Federal 
laws? 


What  re 
semblance 
did  this 
clause  bear 
to  a  treaty  ? 


For  what 
•was  this 
clause 
designed  ? 


How  may 
new  States 
be  admit 
ted? 


The  term  "  slave  "  is  not  used  in  the  Constitution,  and  if  "per 
son  "  means  "  slave,"  then  the  Constitution  treats  slaves  as  persons, 
and  not  as  propertj,  and  it  acts  upon  them  as  persons  and  not  as 
property,  though  the  latter  character  may  be  given  to  them  by  the 
laws  of  the  States  in  which  slavery  is  tolerated.  Lemmon  v.  Peo 
ple,  20  N.  Y.  (6  Smith),  624. 

228.  "SHALL  BE  DELIVERED  ur." — This  contemplates  summary 
and  informal  proceedings  (not  a  suit),  and  a  prima  facie  case  of 
ownership  only.  (Somerset's  Case,  20  State  Trials,  79.)  Story's 
Const.  §  1812  ;  Jack  v.  Martin,  12  Wend.  511 ;  Prigg  v.  Pennsyl 
vania,  1G  Pet.  667  ;  Sims'  Case,  7  Cush.  731;  2  Story's  Const.  (3d 
ed.)  pp.  622,  625  ;  Wright  v.  Deacon,  5  S.  &  R.  G2.  The  delivery  is 
to  be  through  the  congressional  enactments  of  Congress ;  and  is 
not  obligatory  upon  the  States,  through  their  executives  or  author 
ities.  Prigg  v.  Pennsylvania,  16  Pet.  608  ;  affirmed  in  Jones  v. 
Vauzandt,  5  How.  225;  Moore  v.  Illinois,  14  How.  13.  The 
student,  who  may  wish  to  calmly  survey  this  irritating  subject, 
which  served  chiefly  to  prepare  the  public  mind  for  the  effort  to 
destroy  the  Union,  but  which  has  ceased  to  be  a  matter  of  agita 
tion  since  the  destruction  of  slavery,  is  recommended  to  read 
attentively  the  last-named  cases  (which  are  also  carefully  reported 
in  Story's  Const.  §  1812a.  18127;),  and  Glen  v.  Hodges,  9  Johns. 
62;  Wright  v.  Deacon,  5  Serg.  &  R.  62  ;  Commonwealth  v.  Griffith, 
2  Pick.  211;  Jack  v.  Martin,  12  Wend.  311;  S.  C.  12  Wend.  507; 
Wheeler's  Law  of  Slavery;  Cobb  on  Slavery;  The  Debates  of 
1850,  1860,  and  1861;  The  Report  of  the  Committee  of  Thirty-one 
in  1861,  and  the  authorities  cited  in  these  notes. 

This  clause  of  the  Constitution  was,  in  character,  precisely  a 
treaty.  It  was  a  solemn  compact,  entered  into  by  the  delegates 
of  States  then  sovereign  and  independent,  and  free  to  remain  so,  on 
great  deliberation,  and  on  the  highest  considerations  of  justice  and 
policy,  and  reciprocal  benefit,  and  in  order  to  secure  the  peace  and 
prosperity  of  all  the  States.  (Sims'  Case,  7  Gushing  (Mass.)  285.) 
Story's  Const.  (3d  cd.)  §  1812&,  note  1,  pp.  615,  616.  And  see 
Miller  v.  McQuerry,  5  McLean,  460  ;  Henry  v.  Lowell,  16  Barbour ; 
Commonwealth  v.  Griffith.  2  Pick.  11  ;  Wright  v.  Deacon,  5  Sergt. 
&  Rawle,  62. 

This  clause  was  designed  to  provide  a  practicable  and  peaceable 
mode,  by  which  such  fugitive,  upon  the  claim  of  the  person  to 
whom  such  labor  or  service  should  be  due,  might  be  delivered  up. 
Sims'  Case,  7  Cush.  288.  The  law  of  1793  (7  St.  302),  for  deliver 
ing  up  without  trial,  was  constitutional.  Commonwealth  v.  Grif 
fith,  2  Pick.  11;  Wright  v.  Deacon,  5  S.  &  R.  62  ;  Jack  v.  Martin, 
12  Wend.  311 ;  Hill  v.  Low,  4  Wash.  C.  C.  327 ;  Prigg  v.  Pennsyl 
vania,  16  Pet.  539;  Johnson  v.  Tompkins.  Baldwin,  371;  Jones 
v.  Vanzandt,  5  How.  215,  229.  The  fugitive  must  not  only  have 
owed  service  or  labor  in  another  State,  but  he  must  have  escaped 
from  it.  (Commonwealth  v.  Fitzgerald,  7  Law  Reports,  379;  Com 
monwealth  v.  Avis,  18  Pick.  193.)  Sims'  Case,  7  Cush.  728. 

SEC.  III. — [1.]  New  States  may  be  admitted  by  the 
Congress  into  this  Union,  but  no  new  State  shall  be 


01. 1.]  NEW  STATES,  229.  235 

formed  or  erected  within  the  jurisdiction  of  any  other  With  what 

0,  0  ,       ,,  ,  ,         .        .  .  .  restrictions? 

fetate  ;  nor  any  state  be  formed  by  the  junction  of  two 
or  more  States,  or  parts  of  States,  without  the  consent       229. 
of  the  legislatures  of  the  States  concerned,  as  well  as 
of  the  Congress. 

229.  "  NEW  STATES  "  are  others  than  those  which  formed  the  What  is  a 
Constitution.     "States"  is  here  used  in  a  broader  sense  than  in  State ? 
the  second  and  third  sections  of  this  article.     Out  of  whatever  ter-  226,  28. 
ritory  such  States  may  be  created,  it  seems  to  be  settled  that  it 
belongs  to  Congress  to  determine  when  a  State  shall  be  added  to 
the  Union ;  and  when  admitted,  the  State  becomes  an  equal  in  the 
Union. 

For  a  history  of  the  subject,  see  Confederation,  ante,  Art.  XT., 
p.  19;  Scott  v.  Sandford,  19  How.  395;  Journals  of  Convention, 
p.  222,  305-311;  2  Pitk.  Hist  ch.  11,  pp.  19,  36;  1  Kent's  Com. 
Lect.  10,  pp.  197,  198:  1  Secret  Journals  of  Congress  in  1775,  368- 
386,  433-446 ;  1  Tuck.  Black.  Com.  App.  383,  386  ;  6  Journal  of 
Congress,  10th  Oct.,  1780,  p.  213;  7  Id.  1st  March,  1781,  pp.  43- 
48  ;  Land  Laws  U.  S.  Int.  chap  ;  Story's  Const,  §  1316.  These  give 
the  history  and  the  early  legislation  in  regard  to  the  crown  lands. 
And  see  Federalist,  Nos.  38,  42.  43;  Am.  Ins.  Company  v.  Canter, 
1  Pet.  511,  542;  The  Ordinance  of  the  13th  July,  1787;  3  Story's 
Laws,  App.  2073 ;  1  Tuck.  Black.  Com.  App.  278,  282 ;  1  St. 
And  for  a  very  full  discussion,  see  Scott  v.  Sandford,  19  How.  395. 
Much  of  this  "  Dred  Scott "  opinion  is  also  given  in  Story's  Const. 
§  1318,  note  1,  pp.  193-226.  As  an  historical  review,  the  opinions,  arid 
the  vast  range  of  discussion  which  they  called  forth,  are  valuable. 
And  see  Webster's  Speeches,  &c.,  360-364.  From  so  vast  a  range, 
which  filled  the  whole  political  literature  of  the  country  and  formed 
the  platforms  of  political  parties,  it  would  be  useless  to  make 
citations. 

This  clause  enabled  Congress  to  admit  new  States ;  it  refers  to  what  terri- 
and  includes  new  States  to  be  formed  out  of  this  territory,  expected  tory  did  tho 
to  be  thereafter  ceded  by  North  Carolina  and  Georgia,  as  well  asf^J^e? 
new  States  to  be  formed  out  of  territory  northwest  of  the  Ohio, 
which  then  had  been  ceded  by  Virginia.  Scott  v.  Sandford  (Justice 
Curtis),  19  How.  611,  612  ;   2  Story's  Const.  3  ed.  p.  212. 

The  Constitution  confers  absolutely  on  the  government  of  the  117, 118, 178. 
Union  the  powers  of  making  war  and  treaties;  consequently  the 
power  of  acquiring  territory  either  by  conquest  or  treaty.  (Amer 
ican  Insurance  Company  v.  Canter,  1  Pet.  542;  sec  Cerre  v.  Portot, 
6  Cr.  336.)  Scott  v.  Sandford,  19  How.  395;  2  Story's  Const.  3d 
ed.  p.  213;  Cross  v.  Harrison,  16  How.  189.  And  see  Fleming  v. 
Page,  9  How.  614. 

The  Confederate  States  Constitution  imposed  this  restriction  upon  What  ro- 
the  admission  of  new  States  into  the  Confederacy:     "Other  States  striction 
may  be  admitted  into  the  Confederacy  by  a  vote  of  two-thirds  of  J^,^ . 
the  whole  House  of  Representatives,  and  two-thirds  of  the  Senate  state*  tF' 
— the  Senate  voting  by  States."    Paschal's  Annotated  Digest,  p.  93,  impose? 
Art.  IV.,  sec.  3,  cl.  1. 


236  NEW  STATES,    229,    230.      [Art.  IV.,  Sec.  3, 

"What  is  tne  The  territorial  legislatures  cannot,  without  permission  from 
T^'-it  'rial  Congress,  pass  laws  authorizing  the  formation  of  Constitutions  and 
govern-  State  governments.  All  measures  commenced  and  prosecuted 
•merits  as  to  with  a  design  to  subvert  the  territorial  government,  and  to  estab- 
fonning  new  jjgh  an(j  pu^  [n  force  in  its  place  a  new  government,  without  the 
consent  of  Congress,  are  unlawful.  But  the  people  of  any  Terri 
tory  may  peaceably  meet  together  in  primary  assemblies,  or  in 
conventions  chosen  by  sucli  assemblies,  for  the  purpose  of  petition 
ing  Congress  to  abrogate  the  territorial  government,  and  to  admit 
them  into  the  Union  as  an  independent  State ;  and  if  they  accom 
pany  their  petition  with  a  Constitution  framed  and  agreed  on  by 
their  primary  assemblies,  or  by  a  convention  of  delegates  chosen 
by  such  assemblies,  there  is  no  objection  to  their  power  to  do  so, 
nor  to  any  measures  which  may  be  taken  to  collect  the  sense  of 
the  people  in  respect  to  it :  provided  such  measures  be  prosecuted 
in  a  peaceable  manner,  in  subordination  to  the  existing  govern 
ment,  and  in  subserviency  to  the  power  of  Congress  to  adopt, 
reject,  or  disregard  them  at  their  pleasure.  2  Opin.  726.  And 
see  the  practice  in  the  admission  of  Maine,  Vermont,  Ten 
nessee,  Kentucky,  and  all  the  States  since,  including  "West  Vir 
ginia;  from  the  differences  in  which  it  would  appear  that  there  is 
no  uniform  rule  for  the  admission  of  new  States.  Hickey's  Const. 
ch.  8,  p. 

What  new        23O.  Under  this  section  the  following  States  have  been  ad- 

. States  have    mitted  : — 

°edenmdmit~      VERMONT,  formed  from  part  of  New  York,  by  act  of  Feb.  18, 

when?          1791,  which  took  effect  March  4,  1791.     1  Stat.  191;  Brightly's 

Vt.  &  Ky.  ?  Dig.  894.  KENTUCKY,  formed  from  part  of  Virginia ;  by  act  of  Feb. 
4,  1791,  which  took  effect  June  1,  1792.  1  Stat.  189;  Brightly's 

Tennessee  ?  Dig.  455.  TENNESSEE,  formed  from  territory  ceded  to  the  U.  S. 
by  North  Carolina,  by  act  of  June  1,  1796,  which  took  effect  from 

Ohio?  date.  1  Stat.  491 ;  Brightly's  Dig.  863.  OHIO,  formed  from  terri 

tory  ceded  to  the  U.  S.  by  Virginia,  by  act  of  Feb.  19,  1803, 
which  took  effect  from  date.  2  Stat.  201 ;  Brightly's  Dig.  708. 

Louisiana?  LOUISIANA,  formed  from  part  of  the  territory  purchased  of  France, 
by  treaty  of  April  30,  1803;  by  act  of  April  8,  1812,  which  took 

Indiana?  effect  from  date.  2  Stat.  701;  Brightly's  Dig.  582.  INDIANA, 
formed  of  part  of  territory  ceded  to  the  U.  S.  by  Virginia,  by  act 
of  Dec.  11,  1816,  which  took  effect  from  date.  3  Stat.  399  ;  Bright- 
Mississippi?  ly's  Dig.  416.  MISSISSIPPI,  formed  from  part  of  the  territory  ceded 
to  U.  S.  by  Georgia  and  South  Carolina,  by  act  of  Dec.  10,  1817, 
which  took  effect  from  date.  3  Stat.  472 ;  Brightly's  Dig.  640.  IL- 

Illinois?  LINOIS,  formed  from  part  of  the  territory  ceded  to  U.  S.  by  Virginia, 
by  act  of  Dec.  3,  1818,  which  took  effect  from  date.  3  Stat.  536; 

Alabama?  Brightly's  Dig.  310.  ALABAMA,  formed  from  part  of  the  territory 
ceded  to  United  States  by  Georgia  and  South  Carolina,  by  act  of 
Dec.  14,  1819,  which  took  effect  from  date.  3  Stat.  608;  Brightly's 

Mdne?  Dig.  29.  MAINE,  formed  from  part  of  Massachusetts,  by  act  of 
March  3,  1820,  which  took  effect  March  15,  1820.  3  Stat.  544; 

Missouri?  Brightly's  Dig.  590.  MISSOURI,  formed  from  part  of  the  "Louisiana 
Purchase,"  by  act  of  March  2,  1821;  which  took  effect  Aug.  10, 

Arkansas?     1821.     3   Stat    645;    Brightly's   Dig.    617.      ARKANSAS,   formed 


Cl.  1.]  NEW  STATES,    230.  237 

from  part  of  the   "Louisiana  Purchase,"  by  act  of  June  15,  1836, 

which   took   effect  from   date.     5    Stat.    50;  Brightly's   Dig.    45. 

MICHIGAN,  formed  from  part  of  the  territory  ceded  to  United  States  Michigan? 

by  Virginia,  by  act  of  June  15,  1836,  which  took  effect  from  date. 

5  Stat.  49 ;  Brightly's  Dig.  614.      FLORIDA,  formed  from  territory  Florida? 

purchased  from  Spain    under  treaty  of  Feb.  22,  1819,  by  act  of 

March  3,  1845,  which  took  effect   from   date.     §   ],    5  Stat.  742; 

Brightly's  Dig.  288.     IOWA,  by  act  of  March  3,  1845,  which  took  Iowa? 

effect  from  date.     5    Stat.    742 ;  boundaries  readjusted,    Aug.    4, 

1846.    §  1,  9  Stat.  52.    Readmitted  Dec.  28,  1846.   9  Stat.  117,  §  1 ; 

Brightly's  Dig.  442,  444.    TEXAS,  an  independent  republic,  annexed  Texas? 

Dec.  29,  1845,  by  act  of  that  date.     9  Stat.  1 ;  Brightly's  Dig.  872; 

Calkin  v.  Cocke,  14  How.  227  ;  Paschal's  Dig.  46,  note  159.     Wis-  Wisconsin? 

CONSIN,  by  act  of  May  29,  1848,  which  took  effect  from  date.   9  Stat. 

57  ;  Brightly's  Dig.  906.  .  CALIFORNIA,  formed  from  part  of  the  ter-  California? 

ritory  ceded  to  U.  S.  by  Mexico,  by  treaty  of  Hidalgo,  Feb.  3,  1848 ; 

by  act  of  Sept.  9,  1850.  9  Stat.  452  ;  Brightly's  Dig.  105.  MINNESOTA,  Minnesota? 

formed  from  part  of  the  "Louisiana  Purchase,"  by  act  of  May  11, 

1858,  which  took  effect  from  date.    11  Stat.  285;     2  Brightly's  Dig. 

301.     OREGON,  see  Treaties  of  the  U.  S.  with  France,  of  April  30,  Oregon? 

1803,  with  Spain,  Feb.  22,  1819  ;  with  Great  Britain,  June  15,  1846  ; 

admitted  by  act  of  Feb.  14,  1859.  11  Stat.  383  ;  Brightly's  Dig.  349. 

KANSAS,  formed  from  part  of  the  "Louisiana  Purchase,"  by  act  of  Kansas? 

Jan.  29,  1861,  which  took  effect  from  date.  12  Stat.  126;  Brightly's 

Dig.  278.    WEST  VIRGINIA,  formed  of  certain  counties  of  Virginia,  West  Ya.? 

by  act  of  Dec.  31,  1862.     12  Stat.  633  ;  admitted  by  same  act,  to 

date    from   June    20,    1863,   by  proclamation   of    the    President. 

Appendix,  12  Stat.  ii.     NEVADA,  formed  from  part  of  California.  Nevada? 

by  act  of  March  21,   1864.     13  Stat.  32.    To  take  effect,  Oct.  31, 

1864,  the  date  of  proclamation  of  the  President.    Appendix,   13 

Stat.  ii.     NEBRASKA,   formed  from  part  of  the  "Louisiana  Pur- Nebraska? 

chase,"  by  act  of  Feb.  9,  1867,  which  took  effect  from  date.     14 

Stat.  391. 

For  the  enabling  acts  and  manner  of  admission,  see  Hickey's 
Constitution,  chap.  10,  pp.  405-449.  And  see  Cross  v.  Harrison, 
16  How.  189. 

All  Congress  intended  (by  the   enabling  act  of  1811),  was  to  What  is  the 
declare  in  advance  to  the  people  of  the  territory,  the  fundamental  o})i(ff  °* an 
principles  which  their  Constitution  should  contain  ;  this  was  very  act?* 
proper  under  the  circumstances  ;  the  instrument  having  been  duly ' 
formed  and  presented,  it  was  in  the  national  legislature  to  judge 
whether  it  contained  the  proper  principles,  and  to  accept  it  if  it  did, 
or  reject  it  if  it  did  not.     Having  accepted  the  Constitution  and  ad-  What  is  the 
mitted  the  State,  "  on  an  equal  footing  with  the  original  States,"  in  effect  of  the 
all  respects  whatever  in  express  terms,  by  the  act  of  1812,  Con-  JJ *$£ Jj"?. 
gress  was  concluded  from  assuming  that  the  instructions  contain-  stitution  ? 
ed  in  the  act  of  1811,  had  not  been  complied  with.      No  funda 
mental  principles  could  be  added  by  way  of  amendment,  as  this 
would  have  been  making  part  of  the  State  Constitution.    If  Congress 
could  make  it  in  part,  it  might,  in  form  of  amendment,  make  it  entire. 
Permoli  v.  First  Municipality,  1  How.  610.    But  see  the  act  of  Con 
gress  of  9th  Feb.,  1867,  requiring  the  agreement  by  the  legislature  17,  is. 


238  TERRITORIES,   231.  [Art.  IV.,  Sec.  3, 

of  Nebraska,  to  the  fundamental  principle,  that  there  should  be  no 
distinction,  as  to  the  right  of  suffrage,  on  account  of  color.  14 
St.  392,  and  Id.  App.  iv. 

what  is  the     [2.1  The  Congress  shall  have  power  to  dispose  of 

power  over  .          ,,  _  . 

the  territory  and  make  ail  neeuiul  rules  ana  regulations  respecting 
pnWic 'prop-  the  territory  or  other  property  belonging  to  the  Uni- 
United  "'  ted  States ;  and  nothing  in  this  Constitution  shall  be 

so  construed  as  to  prejudice  any  claims  of  the  United 

States,  or  of  any  particular  State. 

What  is  "to  231.  "To  DISPOSE  OF." — In  other  words,  to  make  sale  of  the 
dispose  of"?  iands,  or  to  raise  money  from  them.  Scott  v.  Sandford,  19  How. 

615;  S.  C.  2  Story's  Const.  3  ed.  p.  19G. 

How  The  power  of  Congress  to   'dispose  of"  the  public  lands,  is  not 

limited?  limited  to  making  sales;  they  may  be  leased.  United  States  v. 
Gratiot.  1  McLean,  454;  14  Pet.  526;  4  Opin.  487.  But  no  prop 
erty  belonging  to  the  United  States  can  be  disposed  of  except  by 
the  authority  of  an  act  of  Congress.  United  States  v.  Nicol,  1 
Paine,  646. 

Define  "AND  MAKE  ALL  NEEDFUL  RULES  AND  REGULATIONS."—  "Needful," 

"needful       here  may  well  be  compared  with   " necessary  and  proper"  in  the 
ra-          18th  clause  of  Art.  I.  Sec.  8.     And  as  Congress  can  only  authorize 
'  dispositions  by  legislative  enactments,  so  the  "needful  rules,"  must 

mean  the  appropriate  legislation  touching  the  subject-matter.  See 
Justice  Curtis  in  Scott  v.  Sandford,  19  How.  615  ;  2  Story's  Const. 
3d  ed.  p.  213. 

28,  29, 129.         The  words  "RULES  AND  REGULATIONS,"  are  usually  employed  in 

the  Constitution  in  speaking  of  some  particular  specified  power 

which  it  means  to  confer  on  the  government,  and  riot,  as  we  have 

seen,  when  granting  general  powers  of  legislation.     As  to  make 

85,  93,  99,       "rules"  for  the  government  and  regulation  of  the  land  and  naval 

forces;  to  "reyulate  commerce;"  "to  establish  an  uniform  rule  of 

naturalization;"  "to  coin  money  and  regulate  the  value  thereof." 

211.        In  all  these,  as  in  respect  to  the  Territories,  the  words  are  used  in 

a  restricted  sense.     (Scott  v.  Sandiord,  19  How.  437.)    2  Story's 

Const.  3d  ed.  pp.  196,  213. 

Define  "RESPECTING  THE  TERRITORY." — TERRITORY.     [Fr.    Territoire ; 

"territory"?  it.  and  Sp.  Territorio ;  Lat.  Territorium;  from  terra,  land.]  1.  The 
2-22-223.  extent,  or  compass  of  land  within  the  bounds,  or  belonging  to  the 
jurisdiction,  of  any  State,  city,  or  other  body.  2.  A  tract  of  land 
belonging  to  or  under  the  dominion  of  a  prince  or  State,  at  a  distance 
from  the  parent  country  or  the  seat  of  government,  &c.  Webster's 
Die..  TERRITORY.  Called  by  Pomponius  in  the  Digests,  the  whole 
amount  of  the  lands  within  the  limits  of  any  State  (unirersitas  ar/ro- 
runi  intra  fines  cujusquc  civitatis).  (Dig.  5(),  16,  239,  8.)  Burrill's 
Law  Die.,  TERKITORIUM;  United  States  v.  Bevans,  3  Wheat.  386; 
Justice  Curtis  in  Scott  v.  S  indford,  19  How.  615  ;  2  Story's  Const. 
p.  211.  It  applied  only  to  the  "  property/  "  which  the  States  held  in 
common  at,  that  time,  and  had  no  reference  whatever  to  any  "ter 
ritory,"  or  other  property  which  the  new  sovereignty  might  after- 


•01.2.]  TEREITORIES,    231.  239 

ward   itsolf  acquire.      Scott  v.   Sandford,   19  How.    615;  S.   C.  2 
Story's  Cons-t.  :;ci  ed.  p.  196.     The  term  "  territory,"  as  here  used,  To  -what  is 
is  merely  descriptive  of  one  kind  of  property,  and  is  equivalent  to  t'ie  wor(l 
the  word  ''lauds."     United  States  v.  Gratiot,  14  Pet.  537.     This  eqniT 
clause  applies  only  to  territory  within  the  chartered  limits  of  some 
one  of  the  States,  when  they  were  colonies  of  Great  Britain.     It 
does  not  apply  to  territory  acquired  by  the  present  federal  govern 
ment,  by  treaty  or  conquest,  from  a  foreign  nation.     Scott  v.  Sand- 
ford,   19  How.  395;  S.  C.,-Story's  Const.  §  1318,  3d  ed.  p.  193. 
But  see  Justice  Curtis'  Opinion,  2  Story,  3d  ed.  p.  211. 

It  does  not  -speak  of  any  territory,  nor  of  territories,  but  uses 
language  which,  according  to  its  legitimate  meaning,  points  to  a 
particular  thing.  The  power  is  given  in  relation  only  to  the  territory 
of  the  United  States,  that  is,  to  territory  then  in  existence,  and 
then  known  or  claimed  as  the  territory  of  the  United  States. 
Scott  v.  Sandford,  19  How.  436  ;  S.  C.  2  Story's  Const.  3d  ed.  p.  196. 

The  power  of  governing  a  territory  belonging  to  the  United  Does  the 
States,  which  has  not,  by  becoming  a  State,  acquired  the  means  of  P°wer  to 
self-government,  has  been  said  to  result  necessarily  from  the  facts  f^u'r'om" 
that  it  is  not  within  the  jurisdiction  of  any  particular  State,  and  the  powt-r  to 
is  within  the  power  and  jurisdiction  of  the  United  States.     Theac<lHire? 
power  to  govern  seems  to  be  the  inevitable  consequence  of  the         203. 
right  to  acquire  territory.     American  Insnrance  Co.  v.  Canter,  1 
Pet.  542-3;  United  States  v.  Gratiot,  14  Id.  537;  Cross  v.  Har 
rison,  16  How.  194;  Whiting,  3H1.      Congress  has   the   constitu 
tional  power  to  pass  laws  punishing  Indians  (within  their  territory) 
for  crimes  and  offenses  committed  against  the  United  States.    The 
Indian  tribes  are  not  so  far  independent  nations  as  to  be  exempt 
from  this  kind  of  legislation.     United  States  v.  Cha-to-kah-na-pe- 
sha,  Hemp.  27.     The  United  States,  under  the  present  Constitution, 
cannot  acquire  territory  to  be  held  as  a  colony,  to  be  governed  at 
its  will  and  pleasure.     But  it  may  acquire  territory  which,  at  the 
time,  has  not  the  population  that  fits  it  to  become  a  State,  and 
may  govern  it  as  a  territory  until  it  has  a  population  which,  in 
the  judgment  of  Congress,  entitles  it  to  be  admitted  as  a  State 
of  the  Union.     During  the  time  it  remains  a  territory,  Congress  220-228. 
may  legislate  over  it  within  the  scope  of  its  constitutional  powers, 
in  relation  to  citizens  of  the  United  States,  and  may  establish  a 
territorial  government ;    and  the  form  of   this  local  government 
must  be  regulated  by  the  discretion  of  Congress,  but  with  power 
not  exceeding  those  which  Congress  itself,  by  the  Constitution,  is 
authorized  to  exercise  over  citizens  of  the  United  States,  in  respect 
to  their  rights  of  person  or  rights  of  property.     The  territory  thus 
acquired,  is  acquired  by  the  people  of  the  United  States,  for  their 
common  and  equal  benefit;  and  every  citizen  has  a  right  to  take 
with  him  into  the  territory  any  article  of  property,  including  his 
slaves,  which  the  Constitution  recognizes  as  property,  arid  pledges 
the  federal  government  for  its  protection.     Scott  v.  Sandford,  19 
How.   395.     The  country   dedicated  to  Indian  purposes  still  re-  What  is  th«* 
mains  a  part  of  the  territory  of  the  United  States,  subject  to  its  power  over 
laws.     The  United  States  v.  Rogers,  4  How.  567.     And'the  power  £SitSyJ 
exists  to  punish  crimes  committed  in  that  country,  whether  perpe 
trated  by  Indians  or  whites.     Id.     And  see  6  Op. 


240  TERRITORIES,    231.  [Art.  IV.,  Sec.  3, 

What  is  the  It  will  be  seen  that  the  principle  stated  by  Chief-Justice  Taney, 
general  [n  United  States  v.  Rogers,  4  How.  567,  recognizes  the  plenary 
power  of  Congress  to  legislate  for  the  Territories — that  is,  as 
stated  in  the  American  Insurance  Co.  v.  Canter,  1  Pet.  542,  all  the 
powers  which  both  Congress  and  the  State  legislatures  combined, 
possess  in  the  States.  But  in  the  Dred  Scott  Case  he  limits  tho 
power,  and  confines  its  exercise  to  the  country  ceded  before  the 
adoption  of  the  Constitution.  But  in  the  case  of  the  United 
States  v.  Rogers,  4  How.  567,  the  territory  under  discussion  was 
part  of  that  acquired  from  Louisiana.  In  reference  to  this  territory, 
as  well  as  that  acquired  from  Georgia,  Spain,  Mexico,  and  Rus 
sia,  there  has  been  no  distinction  in  regard  to  the  character  of 
legislation.  Congress  has  exercised  power  both  as  to  crimes  and 
civil  and  political  rights.  The  organized  territorial  governments 
have  been  treated  as  inchoate  States  for  some  purposes.  Slavery 
has  been  tolerated  or  prohibited,  according  to  circumstances.  And 
now  that  the  agitating  question  of  slavery  is  out  of  the  way, 
the  author  would  venture  to  suggest  that  the  country  will 
settle  down  upon  the  principle  that  organized  "Territory" 
carries  along  the  idea  of  power  and  jurisdiction ;  and  that 
Congress  has  the  right  to  organize  governments  there,  "  mak 
ing  rules "  which  shall  not  be  inconsistent  with  the  Consti 
tution  of  the  United  States ;  and  exercising  all  the  power  over  the 
inhabitants,  no  more,  no  less,  which  may  be  exercised  over 
the  States ;  not  exclusive  legislation  as  in  the  District,  and  forts, 
and  arsenals ;  but  all  the  legislation  which  may  be  necessary 
138,  221,  222.  and  proper  to  guarantee  the  principles  of  republican  government; 
and  to  insure  the  erection  and  admission  of  new  States,  with 
those  principles.  The  failure  has  been  in  observing,  that  an 
organized  territorial  government  is  for  all  purposes  of  municipal 
legislation,  a  State,  and  has  been  so  recognized  in  many  ways. 
And  the  supervision  of  Congress  over  such  legislation  is  no 
greater  than  the  national  supervision  over  unconstitutional  legis 
lation  by  the  States.  The  only  difference  is  in  the  mode  of 
revision  and  redress.  See  Scott  v.  Sandford,  19  How.  395-633 ; 
2  Story's  Const,  pp.  205,  214-218. 

Define  "all"  In  Scott  v.  Sandford,  Mr.  Justice  Curtis  insisted  that  "ALL" 
and^'necd-  meant  all;  that  Congress  alone  could  judge  of  what  was  "  NEED- 
ful" ?  FUL."  But  the  majority  denied  that  '•  ALL  "  included  the  right  to 

make  a  rule  excluding  slavery ;  or  rather,  it  was  denied  that  a 
cession  of  territory  cedes  the  legislative  jurisdiction  for  any  other 
purpose  than  to  dispose  of  the  property  in  the  land.  See  19  How. 
pp.  615,  616;  Story's  Const.  3d  ed.  p.  214.  The  difference  of 
opinion  cannot  be  more  strongly  stated  than  in  these  words  : — 
"  I  construe  this  clause,  as  if  it  read  :  Congress  shall  have  power 
to  make  all  needful  rules  and  regulations  respecting  those  tracts 
of  country  out  of  the  limits  of  the  several  States,  which  the 
United  States  have  acquired,  or  may  hereafter  acquire,  by  cessions, 
as  well  of  the  jurisdiction  as  of  the  soil,  so  far  as  tho  soil  may  be 
the  property  of  the  party  making  the  cession,  at  the  time  of 
making  it."  Justice  Curtis,  2  Story's  Const.  3d  ed.  p.  213.  The 
opposite  view  was  expressed  in  these  words : — 

"  2.  The  Congress  shall  have  power  to  dispose  of  and  make  all 


Cl.  2.]  PROPERTY  OF  UNITED  STATES,    232.  241 

needful  rules  and  regulations  concerning  the  property  of  the  Con 
federate  States,  including  the  lands  thereof. 

3.  The  Confederate  States  may  acquire  new  territory,  and  Con-  How  did  the 
gress  shall  have  power  to  legislate  and  provide  governments  for  Confederate 
the  inhabitants  of  all  territory  belonging  to  the  Confederate  States,  dS  from 
lying  without  the  limits  of  the   several  States,  and  may  permit  this  ? 
them,  at  such  times  and  in  such  manner  as  it  may  by  law  provide, 
to  form  States  to  be  admitted  into  the  Confederacy.     In  all  such 
territory  the  institution  of  negro  slavery,  as  it  now  exists  in  the 
Confederate  States,  shall  be  recognized  and  protected  by  Congress, 
and  by  the  territorial  government ;   and  the  inhabitants  of  the 
several  Confederate  States  and  Territories  shall  have  the  right  to 
take  to  such  Territory  any  slaves  lawfully  held  by  them,  in  any  of 
the  States  or  Territories  of  the   Confederate  States."     Paschal's 
Annotated  Digest,  p.  93,  Art.  IV.,  Sec.  III.,  Cl.  2,  3. 

This  was  making  the  Constitution  precisely  what  this  school  con 
tended  the  Dred  Scott  decision  had  settled  that  it  was.  The 
power  to  acquire  and  govern  territory  seems  to  grow  out  of  the 
war  power  and  to  rest  upon  constitutional  principles.  Fleming  v. 
Page,  9  How.  614;  Cross  v.  Harrison,  16  How.  189. 

232.  "  OR  OTHER  PROPERTY  BELONGING  TO  THE  UNITED  STATES."  What  is 
— "PROPERTY"  (Proprietor,  proprius)\&  the  most  comprehensive  property  ? 
word  of  dominion  or  ownership.     See  "Webster's  Die.,  PROPERTY. 
It  is  the  right  to  dispose  of   the  substance  of   a  thing  in  every 
legal  way,  to  possess  it,  to  use  it,  and  to  exclude  every  one  else 
from  interfering  with  it.     (Mackeld  Civil  Law,  269,  §  259 ;  Bell's 
Diet. ;  Taylor's  Civil  Law,  476;  2  BL  Com.  15.)    BurruTs  Law  Die., 
PROPERTY. 

And  the  same  power  of  making  needful  rules  respecting  the 
territory  is,  in  precisely  the  same  language,  applied  to  the  other 
property  belonging  to  the  United  States — associating  the  power 
over  the  territory  in  this  respect  with  the  power  over  movable  or 
personal  property — that  is,  the  ships,  arms,  and  munitions  of  war, 
which  then  belonged  in  common  to  the  State  sovereignties.  And 
it  will  hardly  be  said,  that  this  power,  in  relation  to  the  last-men 
tioned  objects,  was  deemed  necessary  to  be  thus  specially  given  to 
the  new  government,  in  order  to  authorize  it  to  make  needful  rules 
and  regulations  respecting  the  ships  it  might  itself  build,  or  arms 
and  munitions  of  war  it  might  itself  manufacture  or  provide  for  the 
public  service.  (Scott  v.  Sandford,  19  How.  436.)  2  Story's 
Const.  3d  ed.  p.  196,  and  §  1324,  1325. 

By  this  conquest  (the  acquisition  of  New  Mexico,  in  1846),  this 
substitution  of  a  new  supremacy,  although  the  former  political  re 
lations  of  the  inhabitants  were  dissolved,  their  private  relations, 
their  rights,  vested  under  the  government  of  their  former  allegiance, 
or  those  arising  from  contract  or  usage,  remained  in  full  force  and 
unchanged,  except  so  far  as  they  were  in  their  nature  and  character 
found  to  be  in  conflict  with  the  Constitution  and  laws  of  the  United 
States,  or  with  any  regulation  which  the  conquering  power,  and 
occupying  authority  should  ordain.  Leitensdorfer  v.  Webb,  20 
How.  336. 

11 


242  THE  UNITED   STATES,    233.  [Art.  IV., 

To  what  "  AND     NOTHING     IN     THIS     CONSTITUTION     SHALL     BE     SO     CON- 

MTtaff  STEUED   AS   TO   PREJUDICE   THE  CLAIMS   OP   THE  UNITED   STATES    OR 

clause  OF  AXY  PARTICULAR  STATE." — This  member  of  the  clause  applied 

refer?  to  the  claims  of  North  Carolina  and  Georgia,  and  could  apply  to 

nothing  else.     Scott  v.  Sandford,  19  How.  437  ;  2  Story's  Const.  3d 

ed.  p.  197.      It  was  to  exclude  the  conclusion  thai  either  party 

would  surrender  their  rights.     Id.  and  p.  212. 

HOW  is  SEC.  IV. — The   United    States    shall  guarantee    to 

form  of        every  State  in  this  Union  a  republican  form  of  govern- 

government  _  * '  _  .  .  . 

etc..  guaran-  ment,  and  shall  protect  each  01  them  against  invasion  ; 
and  on  application  of  the  legislature,  or  of  the  executive 
(when  the  legislature  cannot  be  convened),  against 
domestic  violence. 

Why  "the         233.  "THE  UNITED  STATES." — This  is  the  only  instance  in  the 
United^         Constitution  where  the  government,   by  its   corporate   name,  has 
covenanted  for  any  duty.     The  "powers"  of  the  government  are 
vested  in  the  respective   departments  thereof;    and,   as  to   the 
14. 15. 165,     "  necessary   and   proper "    legislation,  that   is   specially   conferred 
195-  upon  Congress.     Here  the  obligation  is  from  the    "  United  States  " 

to  the  "States;"  but  whether  to  be  exercised  by  Congress  or  the 
138,  275-279.  President,  is  one  of  the  questions  which  has  grown  out  of  the  re 
construction  measures. 

One  of  the  grounds  of  impeachment  alleged  against  the  President 
was  the  usurpation  of  this  power.  The  Report  on  Impeachment  of  the 
President,  55.     In  the  case  of  Luther  v.  Borden,  7  How.  42,  Chief- 
Justice  Taney  said :   "  It  rests  with  Congress  to  decide  what  govern- 
What  de-      ment  is  the  established  one  in  a  State.     For,  as  the  United  States 
partment  is  guarantee  to  each  State  a  republican  government,  Congress  must 
such  politi-   necessarily  decide  what  government  is  established  in  the  State  before 
cal  ques-       it  can  determine  whether  it  is  republican  or  not.     And  when  the 
lions?  senators  and  representatives  of  a  State  are  admitted  into  the  councils 

195.  of  the  Union,  the  authority  of  the  government  under  which  they 
are  appointed,  as  well  as  its  republican  character,  is  recognized  by 
the  proper  constitutional  authority.  And  its  decision  is  binding  on 
every  other  department  of  the  government,  and  could  not  be  ques 
tioned  in  a  judicial  tribunal."  Quoted  and  approved.  Ex  parte 
Coupland,  26  Tex.  434;  Federalist,  No.  21,  p.  112. 

Define  "to         "SHALL  GUARANTEE." — [L.  Lat.  guarrantar,  guarrantiswre.'] — To 

Guarantee"?  become  responsible  for;    to  warrant;    to  undertake  for  another, 

that,  if  that  other  does  not  do  the  thing,  the  party  guaranteeing 

will  himself  do  it.     The  obligation  of  a  guaranty  is  essentially  in 

the  alternative.     Britton,  chap.  75;  3  Kent's  Com.  121;   Story  on 

Contracts,  §  852;  Fell  on  Guaranties,  1.     The  word  seems  to  be 

essentially   the   same  with   warranty.      Id.      Bu mil's  Law    Die., 

220-233,  226,  GUARANTY,  or  GUARANTEE.     For  a  technical  and  limited  significa- 

229-232.         tjonj  see  Parker  v.  Culvertson,  1  Wall.  Jr.  Ct.  Ct.  149,  15:?. 

"  To  EVERY  STATE  IN  THIS  UNION." — State  here  also  means  as 
well  the  States  which  agreed  to  the  Constitution,  as  also  the  inchoate 
States  or  organized  territories,  and  the  new  States,  since  admitted,  or 


Sec.  4.]  KEPUBLICAN  GOVERNMENT,    233.  243 

hereafter  to  be  admitted.  A  "  State  "  (for  the  purpose  of  the  judicial 
power)  must  be  a  member  of  the  Union.  It  is  not  enough  to  be  an 
organized  political  body  within  the  limits  of  the  Union.  Scott  v.  205. 
Jones,  5  How.  343,  377;  Cherokee  Nation  v.  Georgia,  5  Pet.  18. 
But  this  is  not  so,  as  to  the  guaranty  of  a  republican  form  of  govern 
ment.  That  is  in  favor  of  the  people — the  citizens — as  well  as  the 
States. 

"A  REPUBLICAN  FORM  OF  GOVERNMENT." — A  government  of  the  What  is  a 
people  ;  it  is  usually  put  in  opposition  to  a  monarchical  or  aristo-  republican 
cratic  government.     This  clause   supposes  a  government  already  g^yern- 
established,  and  this  is  the  form  of  government  the  United  States  meat  ? 
have  undertaken  to  guarantee.      (Story's  Const.  §  1807.)      Burrill's 
Law  Die.,  REPUBLICAN  GOVERNMENT. 

This  term  has  of  course  received,  no  practical  authoritative  defi-  To  what 
nition.     It  supposes  a  pre-existing  government  of  the  form  which  is  |J0"s..tho 
to  be  guaranteed.     As  long,  therefore,  as  the  existing  republican  fxtend  f 
forms  are   continued  by  the  States,  they  are  guaranteed  by  the 
federal  Constitution.     Whenever  the  States  may  choose  to  establish  What  is  the 
other  republican  forms,  they  have  a  right  to  do  so,  and  to  claim  the  restriction? 
federal    guaranty   for   the   latter.      The   only  restriction   imposed 
on   them  is,  that   they  will  not  exchange  republican  for  anti-re 
publican  constitutions;    a   restriction  which   it   is   presumed  will 
hardly  be  considered  as  a  grievance.     (Federalist,  No.  21  ;  see  Mon 
tesquieu,  B.  9,  chap.  1,  2  ;   1  Tuck.  Black.  App.  366,  367.)      Story's 
Const.  §  1817  ;  Federalist,  No.  43,  pp.  214,  215.    But  this  still  leaves 
the  term  undefined,  except  so  far  as  the  description  may  be  derived 
from  the  character  of  the  State  governments  when  they  formed 
this  Constitution.     The  restrictions  which  they  had  imposed  upon  238-241. 
themselves,  and  to  which  they  agreed  when  they  made  this  Con-  245-275. 
stitution  the  supreme  law ;  and  the  rights  of  the  citizens  secured  16-18. 
by  the  amendments,  which  constitute  a  Bill  of  Rights.     The  first 
guaranty  is  the  elective  principle.     But  upon  whom  the  elective  How  ia  it 
franchise  shall  be  conferred  is  not  defined,  and  must  be  controlled  ?Fect,ed.  ^ 
by  circumstances.     The  right  need  not  be  universal ;  and  must  not  princjpie? 
be  too  restricted.     The  next  is,  the  model,  upon  which  all  our 
governments  are  based,  legislative,  executive,  and  judicial.     Cer- 16-18. 
tainly  the  guaranty  is  to  enforce  upon  the  States  the  restrictions 
imposed  upon  them  in  the  federal  Constitution ;  that  is,  the  States  275-273. 
shall  not  exercise  the  prohibited  powers,  nor  the  powers  which  139-143. 
have  been  granted  to  and  exercised  by  Congress.     And  now,  prac 
tically,  we  have  the  great  examples,  that  where  States  deny  the  71-133. 
obligation  of  the  federal  Constitution,  and  form  a   confederation  What  has 
among  themselves  upon  the  same  model,  although  they  may  retain  eft-ect  Oj  the 
the  same  forms  and  constitutions  of  the  State  governments,  yet  the  rebellion? 
United  States  have  regarded  it  as  an  occasion  for  the  exercise  of 
this  power;  have  declared  such  existing  State  governments  as  in  274-276,  279. 
fact  not  republican ;   have  annulled   them,  and  have  required  new 
Constitutions  to  be  formed,  based  upon  the  organic  change,  which 
had  destroyed  slavery,  and  thus  settled  that  it  was  no  longer  a 
ropublican   institution.      About  the  right  to  exercise  this  power, 
there  has  been  no  dispute.     Unfortunately,  the  controversy  has 
been,  a.s  to  what  department  of  the  government  of  the  United  States 


244 


KEPUBLICAN   GOVERNMENT,    233,    234.    [Art.  IV., 


275-277. 


What  laws 
would  in- 


shall  judge  of  the  necessity  and  apply  the  remedy,  and  what  shall 
be  the  extent  of  the  organic  changes  in  the  States  ?  If  the  prac 
tice  and  common  understanding  in  the  admission  of  new  States, 
and  the  precedent  of  Luther  v.  Borden,  7  How.  1,  are  to  control, 
then  the  question  would  seem  to  be  settled  in  favor  of  the  power 
of  Congress  to  determine  when  a  State  government  is  republican 
inform  and  in  practice.—  [EDITOR.  See  President  Lincoln's  procla 
mation  of  1st  Jan.,  1863,  and  the  amnesty  proclamations,  and  the 
proclamations  of  President  Johnson,  appointing  provisional  gov 
ernors  ;  his  directions  declaring  what  the  State  conventions  shall 
do,  and  declaring  civil  government  restored.  See  also  his  mes 
sages  and  veto  messages  upon  the  subject;  the  debates  of  the 
thirty-ninth  and  fortieth  Congresses  everywhere  ;  the  President's 
Message  to  the  second  session  of  the  fortieth  Congress,  Dec.  3, 
1867;  the  reports  of  the  joint  committee  upon  reconstruction; 
the  reconstruction  acts  ;  the  majority  and  minority  reports  of  the 
committee  on  judiciary  upon  the  impeachment  of  the  President, 
and  the  debates  of  the  thirty-ninth  and  fortieth  Congresses  thereon. 
McPherson's  Manual,  and  Paschal's  Annotated  Digest,  note  1174. 

"  I  take  it  that  the  States  would  not  be  allowed  to  establish  pri 
mogeniture  ;  to  abolish  the  trial  by  jury  in  all  cases  ;  to  unite  the 
Church  and  State  ;  nor  in  any  way  to  violate  the  great  cardinal 
principles  of  liberty  secured  by  the  national  Bill  of  Rights,  and  which 
the  fourteenth  amendment  seeks  to  extend  to  the  States.  I 
cannot  subscribe  to  the  omnipotence  of  a  State  legislature,  or 
that  it  is  absolute  and  without  control,  although  its  authority  should 
of  no^  ^e  restrained  by  the  Constitution  or  fundamental  law  of  the 
a  republican  State.  The  nature  and  end  of  legislative  power  will  limit  the  ex- 
form  of  gov-  ercise  of  it.  This  fundamental  principle  flows  from  the  very  nature 
ernment  ?  Qf  our  ^VQQ  republican  governments,  that  no  man  should  be  com 
pelled  to  do  what  the  law  does  not  require,  nor  refrain  from  doing 
that  which  the  law  permits.  There  are  certain  vital  principles  in 
our  free  republican  governments,  which  will  determine  and  over 
rule  an  apparent  flagrant  abuse  of  legislative  power,  such  as  to 
authorize  manifest  injustice  by  a  positive  law,  or  to  take  away  that 
security  for  personal  liberty  or  private  property,  for  the  protection 
143,  156-161.  whereof  government  was  established."  (Calderv.  Bull,  3  Dall.  386.) 
Wynehamer  v.  The  People,  13  K  Y.  (3  Kern.),  391,  392.  The 
cases  of  ex  post  facto  law;  impairing  contracts;  making  a  man 
accuse  himself;  taking  A's  property  to  give  to  B;  punishing  inno 
cence  as  guilt,  and  violating  property,  cited.  (Calder  v.  Bull,  3 
Dall.  386;  Fletcher  v.  Peck,  3  Cranch,  385  ;  Dash  v.  Van  Kleek,  7 
Johns.  477  ;  Taylor  v.  Porter,  4  Hill,  146  ;  Goshen  v.  Stonington,  4 
Conn.  225.)  Wynehamer  v.  The  People,  13  1ST.  Y.  391,  392.  See 
Wilkinson  v.  Leland,  2  Pet.  653;  Harding  v.  Goodlet,  3  Yerg.  41  ; 
2  Kent's  Com.  llth  ed.  p.  339,  and  notes. 

That  State  must  not  boast  of  its  civilization,  nor  of  its  progress 
in  the  principles  of  civil  liberty,  where  the  legislature  has  power 
to  provide  that  a  man  may  be  condemned  unheard.  Oakley  v.  As- 
pinwall,  4  Comstock,  522. 

What  is  234.    "AND    SHALL    PROTECT    EACH     OP   THEM   AGAINST    INVA- 

invasion?     SIGN."  —  Invasion  has  been  defined  in  note  133.     The  means  to  be 


Sec.  4.]  INVASION,  INSUKKECTION,  235.  245 

employed  are  the  whole  powers  of  declaring  war  and  its  incidents. 
See  Act  of  12th  Jan.  1862,  12  St.  589,  590.     The  latitude  of  expres- 117-133. 
sion  here  used,  secures  each  State  not  only  against  foreign  hostility, 
but  against  ambitious  or  vindictive  enterprises  of  its  more  power 
ful  neighbors.     Story's  Const.  §  1818 ;  Federalist,  No.  43,  p.  215. 

235.  "AND  ON  THE  APPLICATION  OF  THE  LEGISLATURE,  OR  or  Who  are 
THE  EXECUTIVE  (WHEN  THE  LEGISLATURE  CANNOT  BE  CONVENED),  |he  Legisla- 
AGAINST  DOMESTIC    VIOLENCE." — The  President    must  determine  233°  234. 
what  body  of  men  constitute  the  legislature,  and  who  is  the  gov 
ernor;   which  is  the  government  and  which  party  is  unlawfully 
arrayed  against  it,  before  he  can  act.     Luther  v.  Borden,  7  How. 
43-45.     The  history  of  the  rebellion  affords  us  these  examples :   1. 
The  case  of  Virginia.     A  large  majority  of  the  legislature  of  the 
State  adhered  to  the  rebellion,  and  after  an  ordinance  of  secession  Give  the 
Virginia  became  one  of  the  "Confederate  States  of  America."  But  ?x.a™P!e  of 
Congress  recognized  the  minority  of  the  legislature  assembled  at  Vlr&lmi 
"Wheeling  as  the  legislature  of  Virginia,  with  authority  to  consent  229,  230. 
to  the  creation  of  the  new  State  of  West  Virginia,  which  was  ad 
mitted  into  the  Union.     2.  In  the  case  of  Missouri.     The  majority  of  Mia- 
of  the  legislature  and  the  governor  adhered  to  the  rebellion;  and,  souri? 
after  the  commencement  of  hostilities,  passed  an  ordinance  of  se 
cession;  and  the  legislature  elected  senators,  and  a  minority  of  the 
people   elected  representatives   to  the   Confederate   Congress   at 
Richmond.     This  was  in  accordance  with  an  enabling  act  of  that 
Congress,  and  the  State  was  admitted  as  a  member  of  the  "Con 
federate  States,"  and  continued  to  be  represented  until  the  over 
throw  of  the  rebellion.     On   the  other  hand,  Missouri  retained 
its  place  in  the  Union  through  the  agency  of  a  convention  elected 
by  the  authority  of  an  act  of  the  legislature  passed  in  1 8GO,  which 
convention,  having  refused  to  pass  an  ordinance  of  secession,  was 
reconvened  upon  the  call  of  its  president,  and  was  recognized  as 
the  lawful  authority  of  Missouri  by  the  government  of  the  United 
States.     3.  In  the  case  of  Kentucky.     The  legislature  refused  to  Of  Ken- 
call  a  convention  or  to  pass  an  ordinance  of  secession.     But  aeon-  tuckyf 
vention  of  rebels  did  assemble  and  pass  an  ordinance  of  secession ; 
and  senators  and  representatives  were  elected  to  the  Congress  of 
the  "Confederate  States,"  who  served  until  the  close  of  the  rebel 
lion.     4.  Louisiana.     This  was  one  of  the  seven  original  seceded  Of  Louisi 
States  which  adopted  the   Confederate   Constitution  ordained  at111"1? 
Montgomery,  Alabama,  in  1861.     After  the   occupation  of  Louisi 
ana  by  the  federal  troops,  a  quorum  of  the  rebel  legislature  could 
not  be  obtained.     But  it  was  solemnly  decided  by  the  Supreme 
Court  of  Louisiana,  that  so  long  as  a  single  parish  remained  loyal 
to  the  Confederacy,  such  parish,  or  minority  of  the  people,  should 
be  regarded  as  the  State  of  Louisiana;  and  that  the  conquered  dis 
tricts  of  the  State  were  lost  to  it,   and  would  so  remain  until  re 
conquered  or  restored  by  a  treaty  of  peace.     5.  Arkansas  and  Ten-  Arkansas 
nessee  had  the  same  history  as  Louisiana.    And  yet  all  these  prac-  and  Tenae* 
tically  dissolved  corporations  and  their  exiled  governors  continued sei 
to  be  recognized  by  the  Confederate  government  as  the  lawful  au 
thorities  of  those  States.    6.  Maryland.     The  majority  of  the  legis-  Of  Mary- 
lators  being  known  to  side  with  the  rebellion,  the  assemblage  of  lau<i? 


246  DOMESTIC   VIOLENCE,    235.        [Arts.  V.,  VI, 

that  body  was  prevented  by  the  military  power  of  the  United 

What  is  the  States.     Therefore,  the  country  seems  to  be  estopped  upon  the  doc- 

u°>on  \vhich  trme'  that  when  tne  exigencies  of  the  republic  require  it,  the  gov- 

the  country  eminent  of  a  State,  whether  regular  or  irregular,  majority  or  minori- 

is  estopped?  ty,  which  adheres  to  the  Union  and  acknowledges  the  supremacy 

of  the  federal  Constitution,  will  be  recognized  and  treated  as  the 

lawful  legislature  and  executive    entitled  to  the   guaranty  to  bo 

protected. 

"  AGAINST  DOMESTIC  VIOLENCE." — By  the  first  act  of  Congress 
to  secure  this  guaranty  (28th  Feb.,  1795,  1  Stat.  424),  it  is  pro 
vided,  that  "  in  case  of  an  insurrection  in  any  State  against  the 
government  thereof,  it  shall  be  lawful  for  the  President  of  the 
United  States,  on  application  of  the  legislature  of  such  State,  or 
of  the  executive  (when  the  legislature  cannot  be  convened),  to 
call  forth  such  number  of  the  militia  of  any  State,  or  States,  as 
may  be  applied  for,  as  he  may  judge  sufficient  to  suppress  such 
insurrection."  Luther  v.  Borden,  7  How.  43 ;  Brightly's  Digest, 
p.  440,  §  1-4. 

What  is  If  there  be  an.  armed  conflict,  it  is  a  case  of  "  domestic  vio- 

"domestic  ]ence,"  and  one  of  the  parties  must  be  in  insurrection  against  the 
lawful  government.  As  the  law  gives  a  discretionary  power  to 
the  President,  to  be  exercised  by  him  upon  his  own  opinion  of 
certain  facts,  he  is  the  sole  and  exclusive  judge  of  the  existence 
of  those  facts.  If  he  err,  Congress  may  apply  the  proper  remedy. 
But  the  courts  must  administer  the  law  as  they  find  it.  (Martin 
v.  Mott,  12  Wheat.  29-31.)  Luther  v.  Borden,  7  How.  44,  45. 
And  see  Act  of  12th  July,  1861.  12  St.  257;  2  Brightly's  Dig. 
1231,  Tit.  INSURRECTION;  United  States  v.  One  hundred  packages, 
11  Am.  L.  R.  419;  Kulp  v.  Bicketts,  20  Leg.  Int.  228;  Val- 
landigham's  Trial,  259  ;  Hodgson  v.  Millwood,  20  Leg.  Int.  60, 
164;  Ohio  v.  Bliss,  10  Pittsburgh  L.  J.  304.  The  acts  upon 
"INSURRECTION"  are  fully  collected  in  2  Brightly's  Dig.  p.  1230- 
1239.  The  framers  of  the  Constitution  seemed  to  have  looked  to 
the  possibility  of  domestic  violence  by  the  slaves.  Federalist,  No. 
43,  p.  246. 

ARTICLE  V. 

HOW  are          The  Congress,  whenever  two-thirds  of  both  houses 
rants  to  be  shall  deem  it  necessary,  shall  propose  amendments  to 
this  Constitution,  or,  on  the  application  of  the  legisla- 
139, 144, 145.  tures  of  two-thirds  of  the  several  States,  shall  call  a 
convention  for  proposing  amendments,  which,  in  either 
case,  shall  be  valid  to  all  intents  and  purposes,  as  part 
of  this  Constitution,  when  ratified  by  the  legislatures 
of  three-fourths  of  the  several  States,   or  by  conven 
tions  in  three-fourths  thereof,  as  the  one  or  the  other 
mode  of  ratification  may  be  proposed  by  the  Congress ; 


01.1,2.]  AMENDMENTS,    236,    237.  247 

provided,  that  no  amendment,  which  may  be  made 
prior  to  the  year  one  thousand  eight  hundred  and 
eight,  shall  in  any  manner  affect  the  first  and  fourth 
clauses  in  the  ninth  section  of  the  first  article;  and 
that  no  State,  without  its  consent,  shall  be  deprived 
of  its  equal  suffrage  in  the  Senate. 

236.  CONGRESS  MAY  PROPOSE  AMENDMENTS,  &c.  —  These  terms  is  the  Presi- 
need  no  definition.     Upon  a  call  of  Congress  in  regard  to  the  sub-  dent's  ap- 
mission  of  the  fourteenth  amendment  to  the  legislatures  of  the  ^cessa  ry? 
States,  President  Johnson  more  than   intimated  an  opinion,  that 

the  resolution  proposing  the  amendment  ought  to  be  submitted  to 

the  President's  approval.     But  the  practice  has  been  otherwise: 

and  as  the  reason   for  such  a  rule  is  superseded  by  the   "  two-  66-70. 

thirds  "  vote,  the  rule  itself  ought  to  cease.     It  has  been  held  that  275-277. 

the  approval  of  the  President  is  not  necessary.     Hollingsworth  v. 

Virginia,  3  Dall.  378.     All  the  amendments  have  been  proposed  to  244,  274,  275. 

the  legislatures  ;    none  to   conventions  of  the  States.      See  Fed 

eralist,  No.   43;  Story's  Const.   §   182G-1831;   1    Tucker's  Black.        242. 

Com.  App.  371,  372.    The  amendments  when  made  are  binding 

upon  the  States. 

ARTICLE  VI. 

[1.]  All  debts  contracted,  and  engagements  entered  what  debts 
into,  before  the  adoption  of  this  Constitution,  shall  be  United 
as  valid  against  the  United  States,  under  this  C  on  sti-  assume? 
tution,  as  under  the  Confederation. 

237.  UNITED   STATES  TO  PAY  THE   DEBTS   OP  THE   CONFED 
ERATION.  —  This  was  but  asserting  a  principle  of  moral  obligation, 
which  always  applies  to  revolutions.     See  Story's  Const.  §  1832- 
1835;    Journal  of  Convention,   291;    Jackson  v.  Lunn,   3   Johns. 
Cases.  109;  Kelly  v.  Harrison,  2  Id.  29;  Terrett  v.  Taylor,  9  Cr. 
50;  Rutherford  Inst.  B.  2,  ch.  9.  §  1,  2;  ch.  10,  §  14,  15;  Vattel, 
Prelim.  Dis.  ch.  1,  §  1  ;  ch.  5,  §  64;  ch.  14,  §  214-21G  ;  Grotius,  B. 
2,  ch.  9,  §  8,  9;  Federalist,  Nos.  43,  84;   1  Tuck.  Black.  Com.  App. 
368;  Confederation,  Art.  XII.  ante,  p.   19. 

The  principle  is,  that  revolution  ought  to  have  no  effect  what 
soever  upon  private  rights  and  contracts,  or  upon  the  public  obli 
gations  of  nations.  Terrett  v.  Taylor,  9  Cr.  50. 

[2.]    This  Constitution,  and  the  laws  of  the  United  what  is  the 


States  which  shall  be  made  in  pursuance  thereof,  and 
all  treaties  made,  or  which  shall  be  made,  under  the 
authority  of  the  United  States,  shall  be  the  supreme 
law  of  the  land;  and  the  judges  in  every  State  shall 


248 


SUPREME   LAW,    238,    239. 


[Art.  VI., 


What  is 
the  Consti 
tution  ? 
2. 

195,  242. 
2,  6T,  68. 


179,  245. 
195-198. 


"What  is  a 
law? 


195,  203. 

211. 
138. 


be  bound  thereby,  any  thing  in  the  Constitution  or 
laws  of  any  State  to  the  contrary  notwithstanding. 

23§.  Tins  CONSTITUTION  creates  the  government.  Of  course  it 
stands  paramount.  And  if  any  law  of  Congress,  treaty,  or  State 
law,  be  found  to  be  a  plain  infraction  of  this  Constitution,  they  will 
be  held  to  be  void.  The  object  was  to  establish  a  government 
which,  to  the  extent  of  its  powers,  is  supreme.  Story's  Const. 
§  1837  ;  Ableman  v.  Booth,  21  How.  517,  520.  A  law,  by  the  very 
meaning  of  the  term,  includes  supremacy.  Story's  Const.  §  1837. 
And  the  government  must  be  strong  enough  to  execute  its  own  laws, 
by  its  own  tribunals.  Ableman  v.  Booth,  21  How.  517.  The  su 
premacy  could  not  peacefully  be  maintained  unless  clothed  with 
judicial  power.  Id.  518,  519.  This  clause  fully  compared  with 
the  judicial  power.  Id. 

239.    "AND  ALL  LAWS  OF  THE  UNITED  STATES  WHICH  SHALL 

BE      MADE     IN      PUESUANCE       THEREOF." — A      LAW     JS     a     Solemn 

expression  of  legislative  will.  Louisiana  Civil  Code,  Art.  I.  It 
is  a  rule  of  action.  It  is  a  rule  of  civil  conduct  prescribed  by  the 
"supreme"  power  in  a  State.  1  Bl.  Com.  44;  1  Kent's  Com.,  Lect. 
XX.  p.  447.  It  includes  supremacy.  Story's  Const.  §  1738.  See 
Federalist,  Nos.  33,  64;  Gibbons  v.  Ogden,  9  Wh.  210,  211  ;  Mc- 
Culloch  v.  Maryland,  4  "Wh.  405,  406.  All  such  laws,  made  by  the 
general  government,  upon  the  rights,  duties,  and  subjects  specially 
enumerated  and  confided  to  their  jurisdiction,  are  necessarily  exclu 
sive  and  supreme,  as  well  by  express  provision  as  by  necessary  im 
plication.  Sims'  Case,  7  Gush.  729  And  the  general  government 
has  the  power  to  cause  such  laws  to  be  carried  into  full  execution, 
by  its  own  powers,  without  dependence  upon  State  authority,  with 
out  any  let  or  restraint  imposed  by  it.  Id. 

A  law  is  made  in  pursuance  of  the  Constitution,  whenever  it  is 
enacted  by  a  constitutional  quorum  of  Congress  and  approved  by 
the  President ;  or,  being  returned  with  his  objections,  is  passed  over 
the  veto  by  the  necessary  two-thirds  vote.  It  then  becomes  the 
supreme  law ;  and  is  generally  regarded  as  binding  until  decided  to 
be  unconstitutional  by  the  Supreme  Court  of  the  United  States,  in 
a  proper  case  arising  upon  the  law. 

After  grave  consideration,  cases  might  arise  where,  after  the  laws 
had  been  passed,  with  all  constitutional  forms  and  time,  and  placed 
on  statute  books,  it  would  be  the  duty  of  the  executive  to  refuse  to 
carry  them  out,  regardless  of  consequences.  This  would  be  involv 
ing  the  country  in  a  justifiable  civil  war.  President  Johnson's  Mes 
sage,  3d  Dec.,  1867.  The  editor  cannot  give  this  sentiment  with 
out  expressing  his  disbelief  in  its  correctness. 

The  sovereignty  to  be  created  was  to  be  limited  in  its  powers  of 
legislation,  and  if  it  passed  a  law  not  authorized  by  its  enumerated 
powers,  it  was  not  to  be  regarded  as  the  supreme  law  of  the  land, 
nor  were  the  State  judges  bound  to  carry  it  into  execution.  And 
as  the  courts  of  a  State,  and  the  courts  of  the  United  States,  might, 
and  certainly  would,  often  differ  as  to  the  extent  of  the  powers  con 
ferred  by  the  government,  it  was  manifest  that  serious  controversies 
would  arise  between  the  authorities  of  the  United  States  and  of  the 


Cl.  2.]  TREATIES,    240.  249 

States,  which  must  be  settled  by  force  of  arms,  unless  some  tribunal        138. 
was  created  to  decide  between  them  finally  and  without  appeal. 
Ableman  v.  Booth,  21  How.  519,  520.     The  Supreme  Court  of  the 
United  States  shown  to  be  that  tribunal.     Id.  520-526. 

And  no  power  is  more  clearly  conferred  by  the  Constitution 
and  laws  of  the  United  States,  than  the  power  of  this  court  to  de 
cide,  ultimately  and  finally,  all  cases  arising  under  such  Constitution 
and  laws,  &c.  Id.  525. 

24O.  A  TREATY  is  a  solemn  agreement  between  nations.    Fos-  Define  a 
ter  v.Neilson,  2  Pet.  314.  ^    treaty^ 

Whenever  a  right  grows  out  of,  or  is  protected  by,  a  treaty,  it  is 
sanctioned  against  all  the  laws  and  judicial  decisions  of  the  States ;  What  is  the 
and  whoever  may  have  this  rignt,  it  is  to  be  protected.  Owing  v.  rule  as  to 
Norwood's  Lessee,  5  Cr.  348 ;  People  v.  Gerke,  4  Am.  L.  R.  604 ;  ^5\ 
6  Opin.  291.  But  though  a  treaty  is  a  law  of  the  land,  and  its  pro 
visions  must  be.  regarded  by  the  courts  as  equivalent  to  an  act  of 
the  legislature  when  it  operates  directly  on  a  subject,  yet,  if  it  be 
merely  a  stipulation  for  future  legislation  by  Congress  it  addresses 
itself  to  the  political  and  not  to  the  judicial  department,  and  the 
latter  must  await  the  action  of  the  former.  Foster  v.  Neilson,  2 
Pet.  253.  "  Shall  be  confirmed,"  was  construed  to  act  presently  on 
the  perfect  Spanish  grants.  Id.  A  treaty  ratified  with  proper 
formalities,  is,  by  the  Constitution,  the  supreme  law  of  the  land, 
and  the  courts  have  no  power  to  examine  into  the  authority  of  the 
persons  by  whom  it  was  entered  into  on  behalf  of  the  foreign  na 
tion.  Doe  v.  Braden,  16  How.  635.  Though  a  treaty  is  the  law 
of  the  land,  under  the  Constitution,  Congress  may  repeal  it,  so  far 
as  it  is  municipal  law,  provided  its  subject-matter  be  within  the 
legislative  power.  Taylor  v.  Morton,  2  Curt.  C.  C.  454  ;  Talbot  v. 
Seaman,  1  Cr.  1 ;  Ware  v.  Hylton,  3  Ball.  361  ;  Story's  Const. 
§  1838. 

A  treaty  concluded  by  the  President  and  Senate  binds  the  nation,  What  is  the 
in  the  aggregate,  and  all  its  subordinate  authorities,  and  its  citizens  obligation 
as  individuals,  to  the  observance  of  the  stipulations  contained  in  it.  ° 
(Ware  v.  Hylton,  3  Dall.  199;  Worcester  v.  Georgia,  6  Pet.  575.) 
Fellows  v.  Dennison,  23  N.  Y.  R.  (9  Smith),  427. 

"  SUPREME  LAW  OF  THE  LAND." — The  highest  law ;  that  which  What  is  tho 
binds  all  the  people  of  the  nation,  and  cannot  be  abrogated  by  the  ^"^If rne 
States.     It  was  intended  to  declare  that,  to  the  extent  of  its  pow-  a^'asa 
ers,  the  Constitution,  laws,  and  treaties  of  the  United  States,  are 
prescribed  by  the  "supreme  power  of  the  State,"  and  are  supreme. 
This  power  of  the  government  can  be  exercised  by  Congress,  or, 
to  the  extent  of  the  treaty-making  power,  by  the  President  and 
Senate.     The  national  rule  of  action  then  is :   1.  The  Constitution ;  What  is  th«> 
2.  Acts  of   Congress;    3.  Treaties;    4.  The  judicial  decisions  as  national *wo 
precedents.     The  State  -constitutions,  laws,  and  decisions  on,  are  ott 

subordinate  to  these.  See  Ableman  v.  Booth,  21  How.  525; 
Story's  Const.,  §  1836-1841;  Federalist,  No.  33  ;  Gibbons  v.  Og- 
den,  9  Wheat.  210,  211;  McCulloch  v.  Maryland,  4  Wheat.  405, 
406;  Letter  of  Congress,  13th  April,  1787;  12  Journal  of  Con 
gress.  32-36;  1  Wirt's  State  Papers,  45,  47,  71,  81,  145;  Sergt'a 
Const,  ch.  21,  pp.  212,  219 ;  ch.  34,  pp.  406,  407;  Ware  v.  Hylton, 

11* 


250 


OATH  OF  OFFICE,    241,    242. 


[Art.  VI., 


How  is  i\ 
treaty  to  oe 
regulated  ? 

195. 


What  was 
Jett'erson'a 
opinion  ? 


3  Ball.  270-277;  Journal  of  Convention,  222,  282,  283,  293;  Fed 
eralist,  Nos.  44,  64;  Debates  on  the  British  Treaty  of  1794;  Jour 
nal  of  the  II.  of  Reps.,  6th  April,  1796 ;  Marshall's  Life  of  Wash 
ington,   ch.   8,  pp.   650-659.     Sergt's   Const.    3d  edition,   ch.    34, 
p.  410  ;  1  Debates  on  British  Treaty,  by  Bache  (1796),  pp.  374-386  ; 

4  Elliot's  Debates,  244-248.      A  treaty  is  to  be  regarded  by  courts 
of  justice  as  equivalent  to  an  act  of  the  legislature  whenever  it 
operates  itself  without  the  aid  of  any  legislative  provision.     Foster 
v.  Neilson,  2  Pet.  314. 

See  Jefferson's  Opinion  in  "Washington's  Cabinet,  that  a  treaty 
was  a  law  of  a  superior  order  (Greek  Treaty  of  1790),  and  could 
not  be  repealed  by  a  future  one ;  and  see  a  different  view,  4  Jeffer 
son's  Corresp.  497,  498;  Wheaton's  Life  of  Piuckney,  p.  517. 

139, 154-161,  241.  The  Constitution  or  laws  of  any  State  to  the  contrary 
21*8'  219'  22 ''  ^withstanding.  I*  matters  not  whether  the  action  of  a  State  is 
223.'  '  '  organic,  and  in  its  Constitution,  or  any  ordinance ;  or  whether  it 

be  in  a  statute,  if  it  violate  the  Constitution,  laws,  or  treaty  of  tlie 

United  States,  it  is  simply  void,  and  "  the  judges  of  every  State  " 

are  bound  by  the  supreme  law,  and  not  by  the  State  law.  Marbury 
142,143.        v.  Madison,  1  Cr.  137,  176;  Calder  v.  Bull,  3  Dall.  386;    Sattorlee 

v.  Matthewson,  2  Pet.  380,  413 ;  Ex  parte  Garland,  4  Wall.  399 ; 

Cummings  v.  Missouri,  5  Wall.  277,  329. 

All  courts  will  declare  State  Constitutions  and  laws,  which  clearly 
239.        violate  the  Constitution,  laws,  or  treaties  of  the  United  States,  void. 

But  only  in  clear  cases.    Id.  See  particularly  Ableman  v.  Booth, 

21  How.  507-526. 


who  shall         f3.]  The  senators  and  representatives  before  men- 
be  bound  by    . 
the  oath 
of  office  ? 

19,  35. 46, 
174,  1S2. 


Any  reli 
gious  test 
required  ? 


What 
officers  are 
embraced  ? 
229-231. 
2-11-242, 

274-285. 


What  was 
the  oath  1 


tioried,  and  the  members  o  the  several  State  legisla 
tures,  and  all  executive  and  judicial  officers,  both  of 
the  United  States  and  of  the  several  States,  shall  be 
bound,  by  oath  or  affirmation,  to  support  this  Consti 
tution  ;  but  no  religious  test  shall  ever  be  required  as 
a  qualification  to  any  office  or  public  trust  under  tho 
United  States. 

242.  "  THE  SENATORS,"  &c. — The  classification  embraces  all  tho 
legislative,  executive,  and  judicial  officers  of  the  United  States, 
and  of  the  States.  The  practice  has  also  been  to  embrace  all  the 
ministerial  and  militia  officers  of  the  country.  The  object  doubtless 
was  to  procure  solemn  recognitions  of  the  preceding  clause.  Story's 
Const.  §  1844-1846.  Especial  attention  is  invited  to  the  four 
teenth  amendment.  The  disqualification  for  participation  in  rebel 
lion  seems  to  be  based  upon  the  higher  obligation  to  observe  this 
oath. 

The  act  of  1st  June,  1789,  prescribed  the  following  oath: — 
"/  A.  B.i  do  solemnly  .nvear,  or  affirm  (as  the  case  may  be),  that 
I  will  support  the  Constitution  of  the  United  States."     1  Stat.  23;  1 
Brightly's  Dig.  706. 


OL  3.]  TEST   OATH,    242.  251 

No  other  oath  is  required,  "yet  he  would  be  charged  with  in 
sanity  who  would  contend  that  the  legislature  might  not  superadd 
to  the  oath  directed  by  the  Constitution  such  other  oath  of  office 
as  its  wisdom  might  suggest."  (McCulloch  v.  Maryland,  4  Wheat. 
4 1 6-)  The  United  States  v.  Rhodes  (by  Justice  Swayne,  in  Ken 
tucky,  October  T.  1867). 

This  is  the  last  and  closing  clause  of  the  Constitution,  and  in- 174, 182 
serted  when   the  whole   framework  of  the  government  had  been 
adopted  by  the  convention.     It  binds  the  citizens  and  the  States. 
And  certainly  no  faith  could  be  more  deliberately  and  solemnly 
pledged  than  that  which  every  State  has  pledged  to   the   other 
States  to  support  the  Constitution  as  it  is,  in  all  its  provisions,  until 
they  shall  be  altered  in  the  manner  which  the  Constitution  itself        230. 
prescribes.     In  the  emphatic  language  of  the  pledge  required,  it  is 
to  support  this  Constitution.     Ableman  v.  Booth,  21  How.  524,  525. 

The  act  of  Congress  of  2d  July,  1862,  12  Stat.  502,  §  1,  requires  What  is  the 
all  federal  officers  to  take  the  following  oath:— "I,  A.  B.,  dotestoath* 
solemnly  swear  (or  affirm),  that  I  have  never  voluntarily  borne 
arms  against  the  United  States  since  I  have  been  a  citizen  thereof; 
that  I  have  voluntarily  given  no  aid,  countenance,  counsel,  or  en 
couragement  to  persons  engaged  in  armed  hostility  thereto ;  that 
I  have  neither  sought  nor  accepted,  nor  attempted  to  exercise  the 
functions  of  any  office  whatever,  under  any  authority  or  pretended 
authority  in  hostility  to  the  United  States ;  that  I  have  not  yielded 
a  voluntary  support  to  any  pretended  government,  authority,  power, 
or  Constitution  within  the  United  States,  hostile  or  inimical  thereto. 
And  I  do  further  swear  (or  affirm)  that,  to  the  best  of  my  knowl 
edge  and  ability,  I  will  support  and  defend  the  Constitution  of  the 
United  States,  against  all  enemies,  foreign  and  domestic;  that  I 
will  bear  true  faith  and  allegiance  to  the  same;  that  I  take  this 
obligation  freely,  without  any  mental  reservation  or  purpose  of 
evasion,  and  that  I  will  well  and  faithfully  discharge  the  duties  of 
the  office  on  which  I  am  about  to  enter,  so  help  me  God." 

The  oath  may  be  taken  before  any  State  officer  authorized  to  142,  143. 
administer  oaths.  If  it  be  falsely  taken,  or  if  it  be  subsequently 
violated,  it  is  perjury.  The  oath  is  required  of  all  attorneys  prac 
ticing  in  the  federal  courts,  and  before  any  of  the  departments 
of  government,  and  of  all  captains  of  vessels.  2  Brightly's  Dig. 
p.  :{48  and  p.  50  ;  12  St.  610.  It  was  held  by  Judge  Busteed.  of  the 
United  States  District  Court  of  Alabama,  that,  as  to  lawyers,  this 
test  oath  was  unconstitutional. 

The  statute  has  been  held  to  be  unconstitutional  as  to  attorneys  How  far 
of  the  Supreme  Court  of  the  United   States  who  were  such  before  B 
the  rebellion,  and  who  could  not  take  the  oath  because  of  their  par 
ticipation  in  it.     Garland's  Case,  4  Wall.  381. 

"No  RELIGIOUS  TEST"  was  doubtless  used  in  the  sense  of  the  What  is  a 
statute  of  25  Charles  II.,  which  required  an  oath  and  declaration  ™^«oua 
against  transubstantiation,  which  all  officers',   civil  and  military, 
were  formerly  obliged  to  take  within  six  months  after  their  admis-         245. 
sion.     See  Webster's  Die.,  TEST.     The  object  was  to  cut  off  all  pre-        285. 
tense  of  alliance  between  Church  and  State.   Story's  Const.  §  184, 


252 


SIGNERS,   243. 


[Art.  VII., 


how 


754;  4  Black.  Com.  44,  53-5Y;  2  Kent's  Com.  Lect.  24,  34,  35; 
Rawle's  Const,  ch.  10,  p.  121. 

ARTICLE  VII. 

The  ratification  of  the  conventions  of  nine  States 

shall  be  sufficient  for  the  establishment  of  this  Con 

stitution  between  the  States  so  ratifying  the  same. 

Done   in    Convention,  by  the  unanimous    consent 

of  the  States  present,  the    seventeenth  day  of 

September,  in  the  year  of  our   Lord  one  thou 

sand  seven  hundred  and  eighty-seven,  and  of  the 

independence  of  the  United  States  of  America 

the  twelfth.     In  witness  whereof,  we  have  here 

unto  subscribed  our  names. 


GEORGE  WASHINGTON,  PresitTt, 


New  Hampshire. 
JOHN  LANGDON, 
NICHOLAS  GILMAN. 

Massachusetts. 
NATHANIEL  GORHAM, 
RUFUS  KING. 

New  Jersey. 
WIL:  LIVINGSTON, 
DAVID  BREARLY, 
WM.  PATERSON, 
JONA:  DAYTON. 

Pennsylvania. 
B.  FRANKLIN, 
THOMAS  MIFPLIN, 
EGBERT  MORRIS, 
GEO:  CLYMER, 
THO:  FITZSIMONS, 
JARED  INGERSOLL, 
JAMES  WILSON, 
Gouv:  MORRIS. 

Delaware. 
GEO;  READ, 

GUNNING  BEDFORD,  JUN'R, 
JOHN  DICKINSON, 
RICHARD  BASSETT, 
JACO:  BROOM. 

Attest  : 


And  deputy  from  Virginia, 

Connecticut. 

WM.  SAML.  JOHNSON, 
ROGER  SHERMAN. 

New  York. 
ALEXANDER  HAMILTON 

Maryland. 
JAMES  M'HENRY, 
DAN  :  OF  ST.  Tuos.  JEJTIFEB, 
DANL.  CARROLL. 

Virginia. 
JOHN  BLAIR, 
JAMES  MADISON,  JR. 

North  Carolina. 
WM.  BLOUNT, 
RICH'D  DOBBS  SPAIGHT, 
Hu.  WILLIAMSON. 

South  Carolina. 
JOHN  RUTLEDGE, 
CHARLES  COTES  WORTH  PINCKNEY, 
CHARLES  PINCKNEY, 
PIERCE  BUTLER. 

Georgia. 
WILLIAM  FEW, 
ABRAHAM  BALDWIN. 


WILLIAM  JACKSON,  Secretary. 


Art.  1.]          KATIFICATION  BY   THE   STATES,    243.  253 

243.  "  RATIFICATION  "  [Ratificare ;  fromratus,  valid,  and/acere,  Define 
to  make.  Litt.  Sec.  515.     Equivalent  to  "  confirmare."]— Co.  Litt.  ratification  ? 
295ft.     A  confirmation  of  a  previous  act  done  either  by  the  party         46. 
himself  or  by  another.     (Story  on  Agency,  §  250,  251;  2  Kent's 
Com.  237.)    BurrilPs  Law  Die.,  RATIFICATION. 

'•OF  THE  CONVENTIONS  OF  NINE  STATES." — This  was  intended 
to  leave  the  action  to  the  people,  as  the  legislatures  could  only 
make  a  league  or  treaty  between  the  parties.  Federalist,  No.  43. 
See  Story's  Const.  §  1850-1856,  and  621. 

"BETWEEN    THE   STATES    RATIFYING    THE     SAME." — "  States "  is  In  what 
here  used  in  the  sense  of  independent  governments,  which  could  f.e"se  i8,, 
not  act,  however,  through  their  legislatures ;  but  only  through  the  n^r  *  £&&&  ? 
conventions  of  the  people.     But  when,  is  not  declared.     That  the          ^ 
rejection  by  a  conveution  was  no  estoppel  upon  a  State,  is  proved 
by  the  case  of  North  Carolina,  whose  first  convention  rejected  the 
Constitution.     The  condition  of  the  non-ratifying  States  is  not  de 
fined  ;    but  the  principles  of  self-preservation  were  strongly  set 
forth  at  that  day.    Federalist,  43 ;  No.  2  Kent's   Com.   Lect.  24, 
30-36;  Rawle's  Const,  ch.  10,  p.  121;  Story's  Const.  §  1851,  1852. 

"ESTABLISHMENT,"  is  here  used  in  the  same  sense  as  the  verb  1-13, 248. 
in  the  preamble  :  the  putting  the  government  created  by  the  Con 
stitution  into  operation. 

Ratifying  extends  beyond  a  literal  definition  of  the  term.     For  To  what 
although  the  "new  States,"  and  the  independent  nation  (Texas)  doesratify- 
which  have  since  been  admitted  into  the  Union,  cannot  be  said  to  ing  e; 
have  ratified  the  Constitution  in  the  sense  of  agreeing  to  the  act  229-232« 
done  by  themselves  or  another  for  them ;  yet  in  theory  and  in 
practice,  they  have  agreed  to  all  its  obligations;  and  because  of 
this  agreement,  every  citizen  for  himself,  and  each  State  in  its  205, 271. 
sovereign   or  corporate  capacity,  is  bound  by  all  the  obligations 
which  the  Constitution  and  the  amendments  impose.     See  the  able 
opinions  in  Chisholm  v.  Georgia,  2  Ball.  474.     See  Preface,  p.  v. 

Thus  we  see  that  from  the  first  word  in  the  preamble  to  the  end  6. 
of  this  stupendous  work,  there  is  a  constant  recurring  necessity  to 
carefully  weigh  every  word  and  phrase ;  to  arrive  at  the  defi 
nitions  by  consulting  the  whole  context,  and  interpreting  each 
part  by  the  ordinary  rules  of  interpreting  other  great  laws  and 
compacts  among  men ;  that  is  by  the  words  of  the  instrument, 
its  context,  its  reason  and  spirit,  the  old  law,  the  mischiefs  and 
the  remedies  intended  to  be  applied ;  always  bearing  in  mind  the 
great  principle,  that  the  compact  must  strengthen  rather  than  perish. 

The  Constitution  was  adopted  on  the  17th  September,  1787,  by  When  was 
the  convention  appointed  in  pursuance  of  the  resolution  of  the  tbe  Consti- 
Congress  of  the  Confederation,  of  the  21st  February,  1787,  aBd£JjLIj£ 
was  ratified  by  the  conventions  of  the  several  States,  as  follows,  states? 
viz.: — Of  Delaware,  on  the  7th   December,   1787;  Pennsylvania, 
12th  Dec.,  1787  ;  New  Jersey,  18th  Dec.,  1787  ;  Georgia,  2d  Jan.,  229,230. 
1788;  Connecticut,  9th  Jan.,  1788  ;  Massachusetts,  6th  Feb.,  1788; 
Maryland,  28th  April,  1788;  South  Carolina,  23d  May,  1788;  New 
Hampshire, '21st  June,  1788;  Virginia,   26th  June,   1788;    New 
York,  26th  July,   1788;  North  Carolina,  21st  Nov.  1789;  Rhode 
Island,  29th  May,  1.790.     North  Carolina  rejected  it  at  its  first  con 
vention.    Story's  Const.  §  1851. 


254 


KELIGION,   244,  245.  [Amendments, 


TV  hen  were 
tho  amend 
ments  pro 
posed? 


What  was 
the  object 
of  the 
amend 
ments? 


What  re 
strictions 
as  to 
religion, 
speech,  the 
press,  and 
risrht  of  pe 
tition? 


De-fine 
'•  establish 
ment"  ? 
93,  1U4:  243. 

What  i* 
religion  ? 


"What  was 
the  object? 

242. 


244.  AMENDMENTS    TO    THE    CONSTITUTION. — These  thirteen 
articles  proposed  by  Congress,  in  addition  to,  and  amendment  of 
the  Constitution  of  the  United  States,  having  been  ratified  by  the 
legislatures  of  the  requisite  number  of  the  States,  have  become 
parts  of  the  Constitution.     The  first  ten  amendments  were  pro 
posed  by  Congress  at  its  first  session,  in  1789.     The  eleventh  was 
proposed  in  1794,  the  twelfth  in  1803,  and  the  thirteenth  and  four 
teenth  (in  note  275),  as  explained  in  notes  274,  275-285.  Bright 
ly 's  Dig.  p.  12,  note  (a}. 

For  the  reasons  which  led  to  these  amendments,  see  2  Elliot's 
Debates,  331,  380-427;  1  Id.  119-122;  3  Id.  139,  140,  149,  153; 
Story's  Const.  §  1857-1868;  2  American  Museum,  423,  425;  Id. 
534;  Id.  540-546;  Id.  553;  2  Kent's  Com.  Lect.  24;  Federalist, 
No.  84 ;  1  Lloyd's  Debates,  414,  420,  430-447.  And  see  the  History 
of  the  Rebellion  for  the  13th  and  14th. 

The  whole  object  seems  to  have  been  to  limit  the  powers  of  the 
government  by  the  prohibitory  power  of  a  bill  of  rights,  notwith 
standing  the  government  was  one  of  limited  powers,  and  contained 
many  restrictions  in  the  shape  of  a  bill  of  rights.  Story's  Const. 
§  1857-1862. 

ARTICLE  I. 

Congress  shall  make  no  law  respecting  an  establish 
ment  of  religion,  or  prohibiting  the  free  exercise 
thereof;  or  abridging  the  freedom  of  speech,  or  of 
the  press  ;  or  the  right  of  the  people  peaceably  to 
assemble,  and  to  petition  the  government  for  a  redress 
of  grievances. 

245.  "  ESTABLISHMENT." — Here  it  means  a  system  of  religion 
recognized  and  supported  by  the  State ;  as  the  Establishment  or 
Established  Church  of  England.     Worcester's  Dictionary,  ESTAB 
LISHMENT  ;  Story's  Const.  §1871. 

''Op  RELIGION." — [Lat.  Religio,  from  re  and  Ugo  to  bind.] — An 
acknowledgment  of  our  obligation  to  God  as  our  creator,  with  a 
feeling  of  reverence  and  love,  and  consequent  duty  of  obedience  to 
him,  &c.  Here  a  particular  system  of  faith  or  worship.  Worces 
ter's  Die.,  RELIGION.  Webster,  Id.  for  a  more  comprehensive 
definition. 

The  real  object  of  the  amendment  was,  not  to  countenance,  much 
less  to  advance  Mahometanism,  or  Judaism,  or  infidelity,  by  pros 
trating  Christianity;  but  to  exclude  all  rivalry  among  Christian 
sects,  and  to  prevent  any  national  ecclesiastical  establishment 
which  would  give  to  a  hierarchy  the  exclusive  patronage  of  the 
national  government.  Story's  Const.  §  1877;  2  Lloyd's  Debates, 
]9"j-l(,>7.  For  a  discussion  of  the  subject,  see  2  Kent's  Com.  (11 
ed.)  Lect.  24,  pp.  35-37  ;  notes  1,  a,  b,  c,  d.  Rawle's  Const,  ch.  10, 
pp.12:,  122;  Montesq.  Spirit  of  Laws,  B.  24,  ch.  3,  5 ;  1  Tuck. 
Black.  Com.  App.  296;  2  Id.  note  G,  pp.  10,  11  ;  4  Black.  Com. 
41-59;  Lord  King's  Life  of  Locke,  373  ;  Jefferson's  Notes  on  Vir- 


Art.  L]  RELIGIOUS  LIBERTY,    245,   246.  255 

ginia,  264-270;  Story's  Const.  §  1870-1879;  People  v.  Rugglcs, 
8  Johns.  160  ;  Vidal  v.  Girard's  Executors,  2  How.  127. 

This,  and  the  clause  in  the  Vlth  Article,  that  '•  no  religious  test 
shall  ever  be  required  for  office,"  are  the  only  provisions  in  the 
federal  Constitution  upon  the  subject.  Ex  parts  Garland,  4  Wal 
lace,  397. 

No  restraint  is  placed  on  the  action  of  the  States ;  but  the  whole  Is  the  re- 
power  over  the  subject  of  religion  is  left  exclusively  to  the  State  8traint  "pon 
governments.     (Story's  Const.  §  1878.)     Ex  parte  Garland,  Id.          rfthe 

This  makes  no  provision  for  protecting  the  citizens  of  the  respec- 
tive  States  in  their  religious  liberties ;  that  is  left  to  the  State  con 
stitutions  ;  nor  is  there  any  inhibition  imposed  by  the  Constitution 
of  the  United  States  in  this  respect  on  the  States.  (Permoli  v.  First 
Municipality,  3  How.  589,  609;  Ex  parte  Garland,  4  Wall.  399. 

This  court  now  holds  the  provision  in  the  Constitution  of  Mis-         !?• 
souri  void,  on  the  ground  that  the  federal  Constitution  forbids  it. 
(Such  as  a  test  oath  to  priests.)     Ex  parte  Garland,  4  Wallace,  398. 142, 143. 
See  the  subject  fully  discussed  in  1  Kent's   Com.  llth  edition,  Part 
IV.  sec.  XXIV.  p.  633;    Story's  Const.  §  1870-1879:  Andrew  v. 
The  Bible,  &c.,  Society,  4  Sandf.  N.  Y.  156;  Ayers  v.  M.  E.  Church, 
3  Id.  351. 

Christianity  is  not  a  part  of  the  municipal  law.    Andrew  v.  N".  Y.  Is  Christt- 
&  P.  B.  Society,  4  Sandf.  N.  Y.  R.  182.     With  us,  all  religions  are  JJjl^  *  part 
tolerated,  and  none  is  established ;  each  has  an  equal  right  to  the  comm0n 
protection  of  the  law.    Ayers  v.  The  Methodist  Church,  3  Sandf.  377.  law  ? 
It  must  be  understood  to  extend  equally  to  all  sects,  whether  they  What  is  the 
believed  in  Christianity  or  not,  and  whether  they  were  Jews  or  In-  extent  of 
fidels.    (Updegraff  v.  The  Commonwealth,  11  Sergt.  &  Rawle,  394.)  JS^r" 
Vidal  v.  Girard's  Executors,  2  How.  198. 

This  declaration  (to  the  same  effect  in  the  Constitution  of  the  re-  What  is  the 
public  of  Texas)  reduced  the  Roman  Catholic  Church  from  the  high  revolution- 
privilege  of  being  the  only  national  church,  to  a  level  and  an  equal-  such^decla- 
ity  with  every  other  denomination  of  Christians.     Blair  v.  Odin,  3  rations  ? 
Tex.  300;  Wheeler  v.  Moody,  9  Tex.  376.    After  this  fundamental 
change,  assessments  and  contributions  could  not  be  levied  for  the 
purpose  of  creating  such  edifices  and  supporting  ecclesiastics,  on 
the  ground  that  the  previous  system  had  destined  such  contribu 
tions.      (Antoines  v.  Esclava,  9  Porter,  527;    Terrett  v.  Taylor,  9 
Cr.  43.)    Paschal's  Annotated  Digest,  note  154;   Blair  v.   Odin,  3 
Tex.  300. 

So  far  as  they  (the  acts  of  Congress  organizing  the  territories)  229, 231. 
conferred  political  rights,  and  secured  civil  and  religious  liberties 
(which  are  political  rights),  the  laws  of  Congress  were  all  super 
seded  by  the  State  Constitution ;  nor  are  any  part  of  them  in  force, 
unless  they  were  adopted  by  the  Constitution  of  Louisiana,  as  laws 
of  the  State.  Perrnoli  v.  First  Municipality,  3  How.  610. 

246.  "FREEDOM  OF  SPEECH"  [from  freo,  free,  and  dom,  juris-  What  is 
diction}, — Liberty;    exemption  from  servitude.      Syn.      Freedom  freedom? 
and  liberty,  as  applied  to  nations,  are  often  used  synonymously. 
Freedom  is  personal  and  private ;  liberty  public.     Worcester's  Die., 
FREEDOM. 


256 


ABMS,  247-250. 


[Amendments, 


Define  the 
"  right  to 
petition '  ? 


Dt-fine  247'.    "  AND  OF  THE  PRESS." — This  language  imports  no  more 

t^ian  ^at  eveiT  man  snall  have  a  right  to  speak,  write,  and  publish, 
his  opinions  upon  any  subject  whatsoever,  without  any  prior  re 
straint,  so,  always,  that  he  does  not  injure  any  person  in  his  rights, 
person,  or  reputation ;  and  so  always  that  he  does  not  thereby  dis 
turb  nor  attempt  to  subvert  the  government.  (Rawle's  Const,  ch.  10, 
pp.  123,  124;  2  Kent's  Com.  Lect.  24,  pp.  16-26;  De  Lolme,  B.  2, 
ch.  12,  13;  2  Lloyd's  Debates,  197,  198.)  Story's  Const.  §  1880- 
1885;  Paschal's  Annotated  Digest,  note  161,  p.  47 ;  1  Black.  Com. 
152,  153;  Rex  v.  Burdett,  4  Barn  &  Aid.  95;  De  Lolme,  B.  2,  ch. 
12,  291-297. 

6, 16,  251.  248.  "  THE  PEOPLE  "  here  is  used  in  the  broad  sense  of  the  pre 
amble  ;  and  a  broader  sense  than  "electors."  It  was  never  un 
derstood  to  apply  to  slaves. 

"RIGHT  TO  PETITION." — This  right  is  incident  to  a  republican 
government.  Story's  Const.  §  1994,  1995.  The  only  question  is 
as  to  the  "GRIEVANCES"  to  be  redressed.  That  must  always  be 
determined  by  the  power  of  the  "  government "  to  give  the  redress 
asked.  See  the  discussions  on  the  21st  rule  of  the  House  of  Rep 
resentatives  in  1838,  and  the  debates  thereon  until  1846. 

It  is  to  be  observed  that  the  right  is  to  petition  the  "  GOVERN 
MENT."  This  must  mean  to  address  the  petition  to  the  appropriate 
department:  to  Congress,  the  executive,  or  the  judiciary,  accord 
ing  to  their  respective  jurisdictions,  as  prescribed  by  the  Constitu 
tion  and  laws.  The  questions  of  jurisdiction  and  of  right  must 
always  determine  whether  the  redress  sought  can  be  granted. 

ARTICLE  II. 

the  A  well-regulated  militia  being  necessary  to  the  se 
curity  of  a  free  State,  the  right  of  the  people  to  keep 
and  bear  arms  shall  not  be  infringed. 

175,  249.  This  clause  has  reference  to  a  free  government,  and  is 
based  on  the  idea,  that  the  people  cannot  be  oppressed  or  enslaved, 
who.  are  not  first  disarmed.  Cockrum  v.  The  State,  24  Tex.  401. 

See  Tucker's  Black.  Com.  upon  the  Militia,  App.  300 ;  Black. 
Com.  143,  144;  Rawle's  Const,  ch.  10,  pp.  126,  127  ;  2  Lloyd's  De 
bates,  23. 

The  President,  by  order,  disbanded  the  volunteer  companies  of 
the  District  of  Columbia,  in  November,  1867.  His  right  to  do  so 
has  been  denied. 

ARTICLE  III. 

No  soldier  shall,  in  time  of  peace,  be  quartered  inl 
any  house  without  the  consent  of  the  owner ;  nor  in  I 
time  of  war,  but  in  a  manner  to  be  prescribed  by  law.  I 

25O.  "  No  SOLDIER." — SOLDIER,  a  man  engaged  in  military 
service ;  one  whose  occupation  is  military ;  a  man  enlisted  for 


What  is 
riyht  to 
bear 
aims? 


249,  130, 
2y8,  240. 


What  is  a 
soldier? 


Arts.  II.-IY.]  SECURITY,    251,    252.  257 

service  in  an  army;  a  private  or  one  in  the  ranks.  "Webster's 
Die.,  SOLDIER. 

"SHALL  BE  QUARTERED  IN  ANY  HOUSE." — To  QUARTER  is  to 
station  soldiers  for  lodging.  Webster's  Die.,  QUARTER. 

The  object  is  to  secure  the  perfect  enjoyment  of  that  great  right 
of  the  common  law,  that  a  man's  house  shall  be  his  own  castle, 
privileged  against  all  civil  and  military  intrusion.  Story's  Const. 
§  1900. 

44  THE  OWNER  "  here  means  the  occupant  in  possession. 

ARTICLE  IV. 

The  right  of  the  people  to  be  secure  in  their  persons,  Warrants? 
houses,  papers,  and  effects,  against  unreasonable 
searches  and  seizures,  shall  not  be  violated  ;  and  no 
warrants  shall  issue,  but  upon  probable  cause,  sup 
ported  by  oath  or  affirmation,  and  particularly  describ 
ing  the  place  to  be  searched,  and  the  persons  or  things 
to  be  seized. 

251.  "THE  PEOPLE  "  is  here  used  in  as  comprehensive  a  sense  Who  arc  the 
as  in  the  preamble,  and  perhaps  in  a  more  enlarged  sense  thanPe°Ple? 
there  or  elsewhere.     It  embraces  all  the  inhabitants — citizens  and 

aliens — who  are  entitled  to  the  protection  of  the  law.    The  slaves  6, 16,  93,  220, 
were  never  treated  as  a  part  of  this  "  people."    The  provision  221i  248i  25& 
is  indispensable  to  the  full    enjoyment  of  the  rights  of  personal 
security,  personal  liberty,  and  private  property.      Story's   Const. 
§  1902. 

"SEARCHES  AND  SEIZURES,"  are  always  unreasonable  when  they  When  un- 
are  without  authority  of  law.     It  was  intended  to  prevent  domi-  reasonable? 
ciliary  visits  and  arbitrary  arrests,  which  are  the  natural  fruits  of 
unrestricted  power. 

252.  "  AND  NO  WARRANT,"  &c. — [0.  Fr.  guarent;  Lomb.  warens.~\  What  Is  a 
— An   authority  to  do  some  judicial  act;   a  power  derived  from  warrant? 
a  court,  to  take  some  person  or   property.      Burrill's  Law  Die., 
WARRANT. 

This  refers  only  to  process  issued  under  authority  of  the  United  To  what 
States.     Smith  v.  Maryland,  18  How.  71.     And  it  has  no  applica-  confined? 
tion  to  proceedings  for  the  recovery  of  debts,  as  a  treasury  distress        257. 
warrant.     Murray's  Lessee  v.  Hoboken   Land  &  Improvement  Co. 
Id.   272.     See  Ex  parts  Burford,  3   Cr.  448;  Wakely  v.   Hart,  6 
Binn.  316 ;   1  Opin.  229  ;  2  Id.  2G6.     See  Ex  parte  Milligan,  4  Wall. 
119.     It  was  caused  by  the  practice  of  issuing  general  warrants. 
Story's  Const.   §  1902.     See   Moody   v.  Beach,  3    Burr.  1743;  4 
Black.  Com.  291,  292  ;   15  Hansard's  Parliamentary  History,  1398- 
1419(1764);  Bell  v.    Clapp,    10  Johns.   263;   Sailley  v.  Smith,  11 
Johns.   500  ;  Report  and  Resolutions  of  the  Virginia  Legislature, 
25th  Feb.  1799;  4  Jefferson's  Correspondence,  justifying  arrests 
by  Wilkinson,  75-136 ;  Story's  Const.  §  1902,  note  2. 


958 


INDICTMENT,    253. 


[Amendments, 


What  is 
necessary  to 
charge  a 
capital  or 
infamous 
crime  f 


What  of  the 
risihts  of 
property  ? 


What  is  a 
"  person" ? 
19,  35,  159. 

What  is  a 
capital  or 
infamous 
crime? 
40,  99,  110- 
116,142,  191- 
194 


What  is  a 
prest-nt- 
ini-ut  ? 

252,  200. 


What  is  an 
indictment? 
252,  260. 


What  is  a 
grand 
jury  ? 


ARTICLE  V. 

No  person  shall  be  held  to  answer  for  a  capital  or 
otherwise  infamous  crime,  unless  on  a  presentment  or 
indictment  of  a  grand  jury,  except  in  cases  arising  in 
the  land  or  naval  forces,  or  in  the  militia,  when  in 
actual  service,  in  time  of  war  or  public  danger ;  nor 
shall  any  person  be  subject  for  the  same  offense  to  be 
twice  put  in  jeopardy  of  life  or  limb  ;  nor  shall  be  com 
pelled,  in  any  criminal  case,  to  be  witness  against  him 
self;  nor  be  deprived  of  life,  liberty,  or  property, 
without  due  process  of  law  ;  nor  shall  private  property 
be  taken  for  public  use  without  just  compensation. 

253.  PERSON. — Practically  the  slaves  and  people  of  color  were 
never  considered  as  embraced  in.  this  amendment,  as  they  were 
often  proceeded  against  without  indictment.  It  meant  a  free 
white. 

"CAPITAL  OR  OTHERWISE  INFAMOUS  CRIME." — This  must  mean 
treason,  piracy,  or  felony  (•'  high  crime  "),  as  contradistinguished 
from  "misdemeanor."  Story's  Const.  §  1784. 

In  England,  it  formerly  incapacitated  the  party  committing  it 
from  giving  evidence  as  a  witness ;  sucli  as  treason,  prcemunire, 
felony,  and  every  species  of  crimen  faki,  as  perjury,  forgery,  and 
the  like.  Roscoe's  Criminal  Evidence,  135.  Usually,  in  this  coun 
try,  it  means  such  as  are  punished  wilh  death,  or  irnprisonrnent  in 
a  State  prison  or  penitentiary.  Id. 

But  the  "  PRESKNTMENT  OR  INDICTMENT"  is  used  in  all  offenses 
against  the  United  States.  "Presentment"  is  the  notice  taken  by 
a  grand  jury  of  any  offense,  from  their  own  knowledge  or  obser 
vation,  without  any  bill  of  indictment  laid  before  them,  upon  which 
the  officer  of  the  court  must  afterward  frame  an  indictment,  be 
fore  the  party  presented  can  be  put  to  answer  for  it.  4  Black. 
Com.  301. 

J ^resentment  (information)  is  not  synonymous  with  "indictment." 
An  indictment  must  be  found  by  a  grand  jury;  an  information 
may  be  preferred  by  an  officer  of  court.  Clepper  v.  The  State,  4 
Tex.  244;  Paschal's  Annotated  Digest,  notes  162,  163,  p.  48.  It 
has  never  yet  been  authorized  by  act  of  Congress.  Story's  Const. 
§  1785. 

An  "INDICTMENT"  is  a  written  accusation  of  one  or  more  per 
sons  of  a  crime  or  misdemeanor,  preferred  to  and  presented  on 
oath  by  a  grand  jury.  (4  Bl.  Com.  302  ;  4  Stephens'  Com.  69 ; 
Arch.  Cr.  Pi.  1.)  Bun-ill's  Law  Die.,  INDICTMENT.  See  Paschal's 
Annotated  Digest,  Art.  28G3,  notes  720-721. 

A  u  GRAND  JURY  "  is  a  body  of  men  varying  from  not  less  than 
twelve  to  not  more  than  twenty-three,  who.  in  secret,  hear  the  evi 
dence  offered  by  the  government  only,  and  find  or  ignore  bills  of  in- 


Art.  V.]  TWICE  IN   JEOPARDY,    254-256.  259 

dictment  presented  to  them.    (4  Bl.  Com.  302,  303 :  4  Stephens         260. 

Com.  369,  370.)     Burrill's  Law  Die.,  GRAND  JURY;  Story's  Const. 

§    1784;    The  King  v.  Marsh,  6  Adolph.  &  Ell.,  236;   1    Nev.  & 

Perry,  187;  People  v.  King,  2  Caines'  Cases,  98;  Commonwealth 

v.  Wood,  2  Gush.  149.     The  subject  of  grand  juries  is  regulated 

by  Act  of  Congress.     9  St.  72;  4  St.  188;  1   Brightly's  Dig.  223, 

232. 

254.  "EXCEPT    IN  CASES  ARISING  IN  THE   LAND   OR  NAVAL  What  is  the 

FORCES,    OR    THE    MILITIA    WHEN    IN    ACTUAL   SERVICE    IN   TIME    OF  j^loL0" ? 

WAR  OR  PUBLIC  DANGER." — This  article,  compared  with  the  eighth  127\29'260 

section  of  the  first  article,  "to  provide  and  maintain  a  navy;"  "to 

make  rules  for  the  government  of   the  land  and  naval   forces." 

"Under  these  provisions  Congress  has  the  power  to  provide  for  the 

trial  and  punishment  of  military  and  naval  offenses  in  the  manner  What  is  tho 

then  and  now  practiced  by  civilized  nations  ;  and  the  power  to  do  jurisdiction 

so  is  given  without  any  connection  between  it  and  the  third  article  trial""  1 

of  the  Constitution  defining  the  judicial  power  of  the  United  States. 

Indeed,  the  two  powers  are  entirely  independent  of  each  other. 

Dynes  v.  Hoover,  20  How.  78. 

And  if  the  sentence  be  confirmed,  it  becomes  final,  and  must  be 
executed,  unless  the  President  pardon  the  offenders.  When  con 
firmed,  it  is  beyond  the  jurisdiction  of  any  civil  tribunal  whatever, 
unless  it  should  be  in  a  case  where  the  court  had  not  jurisdiction 
over  the  subject-matter  of  the  charge.  Dynes  v.  Hoover,  20  How. 
81;  3  Whiting,  335. 

If  the  court-martial  had  no  jurisdiction,  or  should  inflict  a  punish-  Suppose  the 

ment  forbidden  by  the  law,  although  the  sentence  be  approved,  court.- 

.    .,  *  '.         ,      '  .         ,    .  .       '  martial  has 

civil  courts  may,  on  an  action  by  a  party  aggrieved,  inquire  into  no  ^urjsdic- 

the  want  of  jurisdiction  and  give  redress.    (Harman  v.  Tuppenden,  tion? 

1  East,  555;  Marshall's  Case,  10  Cr.  76;  Morrison  v.  Sloper,  Willes, 
30 ;    Parton  v.  Williams,   B.   &  A.  330.)      Dynes    v.  Hoover,  20 
How.  82  ;  S  C.  3  Whiting,  336. 

255.  "  FOR  THE  SAME   OFFENSE   TO  BE  PUT  TWICE  IN  JEOPARDY  What 
OF  LIFE  OR  LIMB." — The  meaning  of  this  phrase  is,  that  a  part}r  means_ 
shall  not  be  tried  a  second  time  for  the  same  offense,  after  he  has 

once  been  acquitted  or  convicted,  unless  the  judgment  has  been 
arrested  or  a  new  trial  granted  on  motion  of  the  party.  But  it 
does  not  relate  to  a  mis-trial.  (United  States  v.  Haskell,  4  Wash. 
C.  C.  402,  410.)  United  States  v.  Perez,  9  Wheat,  579.  The  court 
may  discharge  a  jury  from  giving  a  verdict,  in  a  capital  case,  with 
out  the  consent  of  the  prisoner,  whenever,  in  their  opinion,  there 
is  a  manifest  necessity  for  such  an  act,  or  the  ends  of  justice  would 
be  otherwise  defeated.  United  States  v.  Perex,  9  Wh.  579.  See 
United  States  v.  Haskell,  4  Wash.  C.  C.  402 ;  United  States  v.  Gilbert, 

2  Sumn.  19  ;  Story's  Const.  §   1787.     See  the  cases  fully  collected 
and  the  distinctions  nicely  stated  in  2  Graham   &  Waterman  on 
New  Trials,  ch.  2,  pp.  51-135.     Paschal's  Annotated  Digest,  note 
113. 

256.  "  WITNESS  AGAINST  HIMSELF." — To  make  a  man  a  witness  "Why  not 
against  himself  would  be  contrary  to  the  principles  of  a  republi-  ao-ai'nst  Mm- 
can  government     Wynehamer  v.  The  People,  13  N.  Y.  391,  392.  Bein 


260 


DUE  PROCESS  OF  LAW,   257.      [Amendments, 


Is  the 
inhibition 
confined  to 
criminal 

cases  ? 


"What  is  due 
process  of 
law? 

260. 


Eepeat 
Magna 
Charta  ? 

251. 


"What  is  due 
course  of 
law? 


Define  the 

ri^htofa 

citizen? 

253. 


What  is 
law  ? 


Does  the 
rule  apply 
to  the  collec 
tion  of 
revenue  ? 


This  must  have  reference  to  criminal  proceedings,  since  the  prac 
tice  of  discovery  in  civil  cases  is  universal.  See  4  Bl.  Com.  326  ;  3 
Wilson's  Law  Lect.  154-159;  Cicero  pro  Sulla,  28.  Rutherford's 
Inst.  B.  1,  cli.  18,  §  5.  Such  a  practice  in  criminal  cases  is  con 
ceived  in  a  spirit  of  torture.  Story's  Const.  §  1788. 

257.  "WITHOUT  DUE  PROCESS  OF  LAW." — By  the  "due  course 
of  law,"  is  meant  all  the  guaranties  set  forth  in  the  sixth  amend 
ment.  Jones  v.  Montes,  15  Tex.  353  ;  James  v.  Reynolds,  2  Tex. 
251.  In  Magna  Charto  it  probably  meant  the  established  law  of 
the  kingdom,  in  opposition  to  the  Civil  or  Roman  law.  James  v. 
Reynolds,  2  Tex.  251 ;  Paschal's  Annotated  Digest,  note  155. 

Nee  super  eum  ibimus,  nee  super  turn  mittimus,  nisi  per  legate  judi- 
cium  parium  suorum,  vel  per  legem  terrce.  Neither  will  we  pass 
upon  him.  or  condemn  him,  but  by  the  lawful  judgment  of  his  peers 
or  the  law  of  the  land.  Magna  Charta;  Story's  Const.  §  1789. 
See  the  question  examined.  Murray's  Lessee  v.  Hoboken  Land 
&  Improvement  Company,  18  How.  272. 

It  conveys  the  same  meaning  as  "law  of  the  land,"  in  Magna 
Charta.  (2  Inst.  50.)  Id.  276. 

"  DUE  PROCESS  OF  LAW." — This  means  that  the  right  of  the 
citizen  to  his  property,  as  well  as  life  or  liberty,  could  be  taken 
away  only  upon  an  open,  public,  and  fair  trial  before  a  judicial 
tribunal,  according  to  the  forms  prescribed  by  the  laws  of  the  land 
for  the  investigation  of  such  subjects.  9th  Op.  200.  An  execu 
tive  officer  cannot  make  an  order  to  violate  this  principle.  Id. 
Property  and  life  are  put  upon  the  same  footing.  Id. 

The  true  interpretation  of  these  constitutional  phrases  is,  that 
where  rights  are  acquired  by  the  citizen  under  the  existing  law, 
there  is  no  power  in  any  branch  of  the  government  to  take  them 
away ;  but  where  they  are  held  contrary  to  existing  law,  or  are 
forfeited  by  its  violation,  then  they  may  be  taken  from  him — not 
by  an  act  of  the  legislature,  but  in  the  due  administration  of  the 
law  itself,  before  the  judicial  tribunals  of  the  State.  Wynehamer 
v.  People,  13  N.  Y.  R.  393  ;  Taylor  v.  Porter,  4  Hill,  145.  That 
is  by  indictment  or  presentment  of  good  and  lawful  men.  (2 
Kent's  Com.  13;  Story's  Const.  §  1782;  2  Coke's  Inst.  45-50.) 
Wynehamer  v.  People,  13  N.  Y.  R.  395;  Jones  v.  Montes,  15 
Tex.  352;  Paschal's  Annotated  Digest,  note  155;  2  Inst.  50,  51; 
2  Kent's  Com.  Lect,  24,  p.  10;  Story's  Const.  §  1789. 

What  law  ?  Undoubtedly  a  pre-existing  rule  of  conduct,  not  an 
ex  post  facto  law,  rescript,  or  decree  made  for  the  occasion — the 
purpose  of  working  the  wrong.  (Norman  v.  Heist,  5  Watts  & 
Sergt.  193;  Taylor  v.  Porter,  4  Hill,  145;  Hoke  v.  Henderson,  4 
Dev.  15.)  Wynehamer  v.  People,  13  N.  Y.  R,  393,  394.  See  full 
citations,  2  Kent's  Com.  llth  ed.  339,  240,  and  notes. 

This  is  intended  to  secure  the  citizen  the  right  to  a  trial,  accord 
ing  to  the  forms  of  law.  Parsons  v.  Russel,  11  Mich.  113.  But 
it  does  not  apply  to  proceedings  to  collect  the  public  revenue. 
Ames  v.  Port  Huron,  &c.,  Co.  1 1  Mich.  139.  See  that  question  ex 
haustively  investigated.  Taylor's  Lessee  v.  Hoboken  Laud  & 
Improvement  Company,  18  How.  272. 

For  though  "  due  process  of  law  "  generally  implies  and  includes 


Art.  V.]       PRIV.  PROP.  FOR  PUB.  USE,  257,  258.  261 

actor,  rev£,  index,  regular  allegations,  opportunity  to  answer,  and  a 
trial  according  to  some  settled  course  of  judicial  proceeding,  yet 
this  is  not  universally  true.  (2  Inst.  47,  50  ;  Hoke  v.  Henderson, 
4  Dev.  X.  C.  K.  15;  Taylor  v.  Porter,  4  Hill,  146  ;  Van  Zandt  v. 
Waddel,  2  Yerg.  260 •  State  Bank  v.  Cooper;  Id.  599;  Jones  v. 
Heirs  of  Perry,  10  Id.%9 ;  Greene  v.  Briggs,  1  Curtis,  311.)  Mur 
ray  v.  Hoboken  L.  &  I.  Co.,  18  How.  280. 

The  article  is  a  restraint  on  the  legislative  as  well  as  on  the  Does  the 
executive  and  judicial  branches  of  the  government,  and  cannot  be  article  re- 
so  construed  as  to  leave  Congress  free  to  make  any  process  "  due  ^sla 
process  of  law."  Id.  276.  We  must  examine  the  Constitution 
itself,  to  see  whether  the  process  be  in  conflict  with  any  of  its  pro 
visions.  Id.  277.  Summary  process  to  collect  revenue  was  always 
allowed.  Id.  Authorities  exhausted.  Id. 

The  law  of  New  York,  which  authorizes  a  person  to  be  commit-  Exemplify  a 
ted  as  an  inebriate  to  the  lunatic  asylum  upon  an  ex  parte  affidavit,  violation  of 
without  being  heard,  violates  this  guaranty.     In  matter  of  Jones,  30     13 
How.  Pr.  446. 

258.  "  PRIVATE    PROPERTY  FOR   PUBLIC    USE  WITHOUT  JUST  What  is 
COMPENSATION. — "  PRIVATE  PROPERTY  "  is  the  sacred  right  of  indi-  private 
vidual  dominion.     It  is  one  of  the  great  absolute  rights  of  every  propy 
citizen  to  have  his  property  protected.     And  the  government  has  231,  233, 144, 
no  right  to  deprive  the  citizen  of  his  property,   except  for  the  ?2- 
use  of  the  public ;  nor  then,  without  compensation.     Story's  Const. 
§  1790. 

This  phrase  includes  all  private  property.  United  States  v. 
Harding,  1  Wall.  Jr.  127  ;  2  Opin.  655.  See  Murray's  Lessee  v. 
Hoboken  Land  &  Improvement  Company,  18  How.  276.  This  last 
clause  refers  solely  to  the  exercise  by  the  State  of  the  right  of 
eminent  domain.  (The  People  v.  The  Mayor  of  Brooklyn,  4  Comst. 
419.)  Gilman  v.  The  City  of  Sheboygan,  2  Blackf.  513.  This  pro 
vision  is  only  a  limitation  of  the  power  of  the  general  government; 
it  has  no  application  to  the  legislation  of  the  several  States.  Bar- 
ron  v.  Mayor  of  Baltimore,  7  Pet.  243-7  ;  Bonaparte  v.  Camden  & 
Amboy  R.  R.  Co.,  Bald.  220.  It  is  now  settled  that  the  amend 
ments  to  the  Constitution  do  not  extend  to  the  States.  Livingston's 
Lessee  v.  Moore,  7  Pet.  551;  Boring  v.  Williams,  17  Ala.  516. 
They  are  exclusively  restrictions  upon  federal  power,  intended  to 
prevent  interference  with  the  rights  of  the  States,  and  of  their 
citizens.  Fox  v.  Ohio,  5  How.  434;  James  v.  Commonwealth,  12 
S.  &  R.  221;  Barker  v.  The  People,  3  Cow.  686.  It  is  a  great 
principle  of  the  common  law.  which  existed  anterior  to  the  Consti 
tution  and  to  magna  charta,  and  which  was  embodied  in  the  29th  What  says 
article  of  that  great  charter  : — "  No  freeman  shall  be  taken,  or  im-  Magna 
prisoned,  or  disseized  of  his  freehold,  or  liberties,  or  other  wise Charta? 
destroyed,  but  by  lawful  judgment  of  his  peers,  or  by  the  law  of 
the  land.".  Young  v.  McKenzie,  3  Ga.  42.  This  is  an  affirmance 
of  a  great  doctrine  established  by  the  common  law  for  the  protec 
tion  of  private  property.  It  is  founded  on  natural  equity,  and  laid 
down  by  jurists  as  a  principle  of  universal  law.  (Story's  Const. 

§1790;  Bradshaw  v.  Rogers,  2  Johns.  106;  Louisville,  Cincinnati 
Charleston    Railroad  Co.  v.  Chappell,  Rice,  387  ;    Doe  v.  The 


262  JUST  COMPENSATION,  258,    259.     [Amendm'ts, 

Georgia  R.  R.  &  B.  Co.,  1  Kelley,  524 ;  1  Bl.  Com.  139,  140.)  Young 
v.  McKenzie,  3  Ga.  40-44;  2  Kent's  Com.  Lect.  24,  pp.  275,  276; 
3  Wilson's  Law  Lect.  203;  Ware  v.  Hylton,  3  Ball.  194,  235.  In 
the  absence  of  any  such  declaration  in  the  Constitution  of  Georgia, 
we  refer  to  this  amendment  as  a  plain,  simple  declaration  of  a  great 
constitutional  principle,  of  universal  application,  as  asserted  and 
declared  in  the  Constitution  of  the  United  States.  Young  v.  Mc 
Kenzie,  3  Ga.  45.  The  true  principle  from  this  case  would  seem 
to  be,  that  the  Constitution  of  the  United  States,  and  the  amend 
ments,  enter  into  and  form  parts  of  the  State  Constitutions — para 
mount  pro  tanto. — ED.  Some  of  these  amendments  were  declara 
tory;  some  restrictive  of  the  powers  of  the  federal  government. 
The  latter  clause  of  this  article  is  only  declaratory.  Young 
v.  McKenzie,  3  Ga.  44. 

A  "  public  use  "  means  a  use  concerning  the  whole  community, 
as  distinguished  from  particular  individuals,  though  each  and  every 
member  of"  society  need  not  be  equally  interested  in  such  use. 
Gilmer  v.  Line  Point,  18  Cal.  229.  Arid  see  Honeyman  v.  Blake, 
19  Cal.  579.  See  People  v.  Kerr,  3  Barb.  N.  Y.  357.  The  right 
of  the  owners  of  town  lots  to  the  adjoining  street,  is  as  much 
property  as  the  lot  itself.  Lackland  v.  North  Missouri  R.  R.  Co. 
31  Mo/180. 

What  b. inst  259.  "Just  COMPENSATION." — Although  we  may  hold  that 
comp*»nsu-  "compensation"  is  not  altogether  synonymous  with  "payment," 
yet  the  means  of  payment  must  not  be  doubtful.  The  making  of 
compensation  must  be  as  absolutely  certain  as  that  the  property  is 
taken.  (Carr  v.  Ga.  R.  R.  &  B.  Co.,  1  Kelley,  524;  Young  v. 
Harrison,  6  Ga.  130 ;  Bloodgood  v.  M  &  II.  R.  R.  Co.,  18  Wend. 
9 ;  2  Kent's  Com.  339.)  B.  B.,  Brazos  &  Colorado  Railroad  Co.  v. 
Ferris,  26  Tex.  60'2.  (See  2  Kent's  Com.  3d  ed.  notes  f,  and  7  ; 
Miller  v.  Craig,  3  Stockt.  N.  J.  106.) 

In  what  The  payment  must  be  in  money,  the  constitutional  currency.    Id. 

must  be        rp^e  advantages  to  the  land  not  taken  cannot  be  estimated  against 

JJJSy*        the  intrinsic  value  of  the  land  actually  taken.     (Jacob  v.  The  City 

of  Louisville,  9  Dana,  114;  The  People  v.  The  Mayor  of  Brooklyn, 

6  Barb.  309 ;  Rogers  v.  R.  R.  Co.  3  Maine,  310 ;  State  v.  Miller,  3 

Zab.  383;    Hatch  v.  R.  R.  25  Vt.  49;    Moale  v.  Baltimore,  5   Md. 

314.)     B.  B.,  Brazos  &Colo.  R.  R.  Co.  v.  Ferris,  26  Tex.  603,  604; 

Paschal's  Annotated  Dig.  note  168. 

What  pro-         Under  an  act  which  authorizes  a  work,  but  does  not  provide  for 

rision  for      compensation  for  private  property,  which  it  will  be  necessary  to 

nSs"be         take'  suctl  property  cannot  be  taken  without  the  owner's  consent. 

made?          Carson  v.  Coleman,  3  Stockt.  N.  J.  106.     The  consequential  injury 

occasioned  by  the  grading  of  a  street,  is  not  a  taking  of  private 

property  for  public  use  within  the  meaning  of  the  prohibition  of  the 

Constitution.     Macy  v.  Indianapolis,  17  Ind.  267. 

The  question   is  not  judicial,  but  one  of  political  sovereignty,  to 
be  exerted  as  the  legislature  directs.     Ford  v.  Chicago,  &c.,  R.  R. 
For  what       Co.  14  Wis.  609. 

purpose  can-  A  railroad  company  cannot  condemn  a  site  for  erecting  a  manu- 
mufcou-  factory  of  railroad  cars.  Eldridge  v.  Smith,  34  Vermont  (5  Shaw), 
demn?  484.  Nor  dwelling-houses  for  employees.  Id.  Otherwise  as  to 


Arts.  V,,  VI.]        JUST  COMPENSATION,    259.  263 

wood  and  lumber  used  on  the  road.  Id.  There  must  be  a  con 
demnation,  or  an  agreement  consummated.  Id.  ;  Whitman  v. 
Boston,  &c.,  3  Allen  (Mass.),  133.  The  condemnation  may  be  within 
the  liberal  construction  of  the  charter.  Fall  River,  &c.,  Co.  v.  Old 
Colony,  &c.,  R.  R.  Co.  5  Allen  (Mass.),  221.  And  see  Wadhams  v. 
Lackawana,  &c.,  R.  R.  Co.,  42  Penn.  State  R.  303  ;  Vicksburg,  <fec., 
R.  R.  Co.,  15  La.  Ann.  507. 

The  actual  occupant  of  vacant  public  lands  is  entitl-ed  to  damages,  To  wnat 
even  where  the  land  is  taken  under  an  net  of  Congress.    California,  title  rt<>esit 
&c.,  R.  R.  Co.  v.  Gould,  21  Cal.  254.    A  statute  fixir.g  the  minimum  ex 
of  fees  for  defending  criminals  is  not  taking  private  property  for 
public  use.     Samuels  v.  Dubuque,  13  Iowa  (5  With.),  536. 

The  law  of  New  York,  which  forbade  the  sale  of  spirituous  state  the 
liquors,  "deprived"  the  owners  of  their  property;  and  violated  this  principle 
guaranty.  Wynehamer  v.  The  People,  13  N.  Y.  R.  395,  396,  397.  jj  :™  laws, 
When  a  law  annihilates  the  value  of  property,  and  strips  it  of  its 
attributes,  by  which,  alone,  it  is  distinguished  as  property,  the 
owner  is  deprived  of  it  according  to  the  plainest  interpretation,  and 
certainly  within  the  spirit  of  the  constitutional  provision  intended 
expressly  to  shield  private  rights  from  the  exercise  of  power. 
W}rnehamer  v.  People,  13  N.  Y.  R.  398.  These  views  do  not  in 
terfere  with  the  license  laws,  which  have  been  held  to  be  constitu 
tional  ;  nor  with  the  laws  which  merely  affect  the  value  of  property, 
or  render  its  destruction  necessary  as  a  means  of  safety.  (Story's 
Const.  §  1790;  Radcliff's  Kxecutors  v.  The  Mayor  of  Brooklyn, 
4  Comst.  195;  2  Kent,  330;  Russel  v.  The  Mayor,  Ac.,  of  New 
York,  2  Penio,  461.)  Wynehamer  v.  The  People,  13  N.  Y.  R.  402; 
Mitchell  v.  Harmony,  13  How.  115;  The  License  Cases,  5  Howard, 
504  ;  Lorocco  v.  Geary,  3  Cal.  69  ;  Am.  Print  Works  v.  Lawrence, 

1  Zabr.  248. 

A  law   prohibiting  the    indiscriminate   traffic    in    intoxicating  what  con- 
liquors,  and  placing  the  trade  under  public  regulation  to  prevent  trol  1ms  the 
abuse  in  their  sale  and  use,  violates  no  constitutional  restraints.  1,^^"™ 
It  deprives  no  one  of  his  liberty  or  property.     Metropolitan  Board  liquor 
of  Excise  v.  Barrie,  34  N.  Y.  R.  667.  trade? 

No  one  legislature  can  curtail   the  power  of  its  successors  to  Can  a 
make  such  laws  as   they  may  deem  proper   in  matters  of  police,  legislature 
(Alger  v.  Weston,  14  Johns.  231  ;  People  v.  Morris,  13  Wend.  320/ 
State  v.   Holmes,  38  New    Hamp.  225  :  Calder  v.  Kirby,  5  Gray, 
59";    Hun  v.  The  State,  I  Ohio,  15;  Wynehamer  v  The   People, 
3  Kern.  (13  N.  Y.  R.)  378;  License  Cases,  5  How.  504;  Butler  v. 
Pennsylvania,  10  How.  416;  Coates  v.  The  Mayor,  7  Cow.  587; 

2  Parsons  on  Cont.  538;  3  Id.  5th  ed.  556.)    Metropolitan  Board  v. 
Barrie,  34  N.  Y.  R.  668.     Some  of  the  dicta  in  Wynehamer  v.  The 
People  have  misled.    Id. 

AETICLE  VI. 


In  all  criminal  prosecutions,  the  accused  shall  enjoy 
the  right  to  a  speedy  and  public  trial,  by  an  impartial 
jury  of  the  State  and  district  wherein  the  crime  shall 
have  been  committed,  which  district  shall  have  been  ie,  35,  46. 


264  CRIMINAL  PEOSECUTIONS,    260.     [Amendments, 

previously  ascertained  by  law,  and  to  be  informed  of 
the  nature  and  cause  of  the  accusation  ;  to  be  confront 
ed  with  the  witnesses  against  him  ;  to  have  compulsory 
process  for  obtaining  witnesses  in  his  favor;  and  to 
have  the  assistance  of  counsel  for  his  defense. 

253,263.  26O.  "THE   ACCUSED,"  here   means  the   "person"  presented 

12,  212,  245.   or  indicted.     The  "  him  "  does  not  limit  the  accused  to  sex.     Be 
cause  the  amendments  did  not  apply  to  the  States,  the  slaves  and 
free  persons  of  color  were  often  deprived  of  a  trial  by  jury. 
263.  This  is  only  to  be  intended  of  those  crimes  which,  by  our  former 

laws  and  customs,  had  been  tried  by  jury.  United  States  v.  Duane, 
(Penn.)  Wall.  106.  The  conspirators  who  assassinated  the  Presi 
dent  of  the  United  States,  while  the  country  was  in  a  state  of 
war,  and  while  the  city  of  Washington  was  under  martial  law, 
were  triable  by  military  commission  under  the  act  of  Congress,  and 
not  entitled  to  a  trial  by  jury.  The  Trial  of  the  Conspirators.  Any 
person  charged  with  a  crime  in  the  courts  of  the  United  States, 
has  a  right,  before  as  well  as  after  indictment,  to  the  process  of  the 
court  to  compel  the  attendance  of  his  witnesses.  1  Burr's  Trial, 
179-80. 

212,  251-259.  This  section  compared  with  Art.  III.,  Sec.  II.,  clause  3,  and  the 
third,  fourth,  and  fifth  amendments.  Ex  parte  Milligan,  4  Wallace, 
119,  120,  139.  The  history  of  these  guaranties.  Id. 

What  is  the      The  Constitution  of  the  United  States  is  a  law  for  rulers  and 
Constitution  people,  equally  in  war  and  in  peace,  and   covers  with  the  shield  of 
ted'states  ?    *ts  Protect'on  a^  classes  of  men,  at  all  times  and  under  all  circum- 
2,  8, 117.    '    stances.     Ex,  parte  Milligan,  4  Wallace,  120,  121.     But  see  the  war 
What  is  the  Power  discussed.    Id.  138,  139.     A  military  commission  could  exer- 
power  of  a     cise  no  judicial  power  over  a  citizen  of  Indiana  during  the  rebellion, 
military        id.     The  laws  and  usages  of  war  could  not  be  applied  to  citizens 
Bioo'?'13"        *n  States  which  have  upheld  the  authority  of  the  government,  and 
To    'horn  is  wnere  the  courts  are  open  and  their  process  unobstructed.      Ex 
jury  trial      parte  Milligan,  Id.  121.     This  right  of  trial  by  jury  is  preserved  to 
secured?       every  one  accused  of  crime,  who  is  not  attached  to  the  army  or 
253  254        navy>  or  militia  in  actual  service.     Id.     See  dissentient  opinion, 
p.  139.     The  fifth  amendment  recognizes  the  necessity  of  an  indict 
ment  or  presentment,  before  any  one  can  be  held  to  answer  for 
high  crimes,  with  the  exception  therein  stated ;  by  which  it  was 
meant  to  limit  the  right  of  trial  by  jury,  in  this  sixth  amendment, 
to  those  persons  who  were  subject  to  indictment  or  presentment 
What  are      in  the  fifth.     Ex,  parte  Milligan,  4  Wallace,  123.     Those  connected 
the  oxcop-     with  military  or  naval  service  are  amenable  to  the  jurisdiction  which 
ll°US254.        Congress  has  created  for  their  government,  and,  while  thus  serv 
ing,  they  surrender  their  right  to  be  tried  by  the  civil  courts.     Id. 
How  are       All  other  persons,  citizens  of  States  where  the  courts  are  open,  if 
the  citizens  charged  with  crime,  are  guarantied  trial  by  jury.    Id.   Civil  liberty 
What 'of        anc^  martial  law  (at  the  will  of  the  commander)  cannot  endure  to- 
martial          gether;  the  antagonism  is  irreconcilable.     Id.     Neither  Congress 
law  ?  nor  the  President  can  disturb  one  of  these  guaranties  of  liberty, 

140, 141.        except  the  one  concerning  the  writ  of  habeas  corpiis.     Id.      But 


Art.  VI.]      CRIMINAL  PROSECUTIONS,    260,    261.  265 

the  suspension  of  the  writ  and  of  investigation  does  not  give  the  What  is 
power  of  trial  otherwise  than  by  the  course  of  the  common  law.  the  cfic^  "f 
Id.  125,  126.     Martial  law  cannot  arise  from  threatened  invasion.  theK<!«f 
The  necessity  must  be  actual  and  present ;  the  invasion  real,  such  corpus  f 
as  effectually  closes  the  courts  and  deposes  the  civil  administration,        ^\  • 
Id.  127.     Then  it  may  exist,  until  the  restoration  of  civil  authority,  f^g*^^ 
but  no  longer.     Id.     Why  martial  law  cannot  be  tolerated.     (Me-  law? 
Connell  v.  Hampden,  12  Johns.  257  ;  Smith  v.  Shaw.    Id.  234.)    Ex 
parts  Milligan,  4  Wallace,  129.     The  case  of  Luther  v.  Borden,  7         233. 
Howard,  1,  explained.    Id.     It  was  not  a  case  arising  under  the 
federal  Constitution.    Id.  129,  130.     As  the  applicant  was  a  citizen  Can  a 
of  the  United  States  residing  in  Indiana,  he  could  not  be  treated  jj^1^ 
as  a  prisoner  of  war.      Id.     131,   134.     Chief-Justice  Chase  and  p^sone^of* 
Justices  Wayne,  Swayne,  and  Miller  concurred  in  the  judgment  of,  war  ? 
but  disagreed  as  to  the  powers  of  Congress  over  the  subjects  of 
MILITARY  LAW,  which  they  divided  into  the  articles  of  war  for  the  What  is  the 
government  of  the  national  forces,  military  government  supersed-  military 
ing,  as  far  as  may  be  deemed  expedient,  the  local  law,  and  exer-  ^w&n 
cised  by  the  military  commander  under  the  direction  of  the  Presi-  divided? 
dent ;  and  MARTIAL  LAW  PROPER,  which  is  called  into  action  by 
Congress,  or  temporarily,  when  the  action  of  Congress  cannot  be 
invoked,  and  in  the  case  of  justifying  or  excusing  peril,  by  the  118, 119. 
President,  in  tunes  of  insurrection  or  invasion,  or  of  civil  or  foreign 
war,  within  districts  or  localities  where  ordinary  law  no  longer 
adequately  secures  public  safety  and  private  rights. 

This  was  intended  as  a  constitutional  safeguard  in  the  trial  of  What  wa» 
those  cases  for  which  it  was  stipulated  that  the  courts  shall  remain  ^e  'n^,en~. 
open,  and  wherein  a  party  shall  have  his  remedy  by  due  course  of  g^-anty  j* 
law.     (Beekman  v.  Saratoga  &  Schenectady  Railroad  Company,  3  "      257. 
Paige,  45 ;  Bonaparte  v.  C.  &  A.  Railway,  Bald.  C.  C.  R.  205  ;  Blood- 
good  v.  M.  &  H.  Railway,  14  Wend.  51 ;  S.  C.  18  Wend.  9 ;  Stevens 
v.  Middlesex  Canal,  12  Mass.  466 ;  Wheelock  v.  Young,  4  Wend. 
650;    Stowel  v.  Flagg,  11  Mass.  364;  Mason  v.  Kennebec  &  Port 
land  Railroad  Company,  31  Maine,  215;  Aldrich  v.  The  Cheshire 
Railroad  Company,  1  Foster,  N.  H.  350.)     B.  B.,  Brazos  &  C.  R.  R. 
Co.  v.  Ferris.  26  Tex.  599;  Paschal's  Annotated  Dig.  note  166. 

These  decisions  are  generally  made  upon  similar  provisions  in  the  276,  277. 
State  Constitutions.    This  provision  of  the  Constitution  of  the  Uni 
ted  States  applies  only  to  the  general  government,  and  not  to  the 
States.     Withers  v.  Buckley,  20  How.  84. 

"THE  ACCUSATION"  means  a  copy  of  the  presentment  or  indict-        253. 
ment.     All  of  these  rights  have  been  regulated  by  acts  of  Con 
gress.     1  St.  88 ;   1  Brightly's  Dig.  221-224,  and  exhaustive  notes 
thereon. 

261.  "COMPULSORY  PROCESS,"  means  forcible  process,  such  aswhatistho 
attachment.     The  principle  grew  out  of  the  oppressive  one  which  meaning  of 
denied  witnesses  to  the  accused.      See  4  Black.   Com.  359,  360;  g0ry"!JJIj!" 
Rawle's  Const,  ch.  10,  pp.  128,  129;  3  Wilson's  Law  Lect.  170,  171 ;  ce»a"» 
Hawk.  P.  C.  ch.  46,  §  160;    2  Hale  P.  C.  283.     Upon  affidavit  of 
inability,  the  accused  can  have  his  witnesses  at  the  expense  of  the 
United  States.     9  St.  72,  §  11;  1  Brightly's  Dig.  223,  §116. 
12 


266 


COMMON  LAW,    262,    263.  [Amendments, 


Tiialsin 
civil  cases? 


262.  "  ASSISTANCE  OF  COUNSEL." — When  this  was  adopted  the 
accused  were  not  allowed  the  assistance  of  counsel  in  England. 
That  defect  has  been  cured  by  an  act  in  1836.  4  Black.  Com.  355, 
356,  note  9;  Story's  Const.  §  1793-1795. 

For  the  power  of  the  court  to  assign  counsel  in  cases  of  treason, 
see  act  of  30th  April.  1790.  1  St.  117,  §  29;  1  Brightly's  Dig.  221, 
§104. 

ARTICLE  VII. 

In  suits  at  common  law,  where  the  value  in  contro 
versy  shall  exceed  twenty  dollars,  the  right  of  trial  by 
jury  shall  be  preserved ;  and  no  fact  tried  by  a  jury, 
shall  be  otherwise  re-examined  in  any  court  of  the 
United  States  than  according  to  the  rules  of  the  com 
mon  law. 


What  are 
Knits  at 
common 
law  ? 


law? 


263.  This  includes  not  merely  the  modes  of  proceeding  known 
to  the  common  law,  but  all  suits  not  of  equity  or  admiralty  juris 
diction,  in  which  legal  rights  are  settled  and  determined.  Parsons 
v.  Bedford,  3  Pet.  433 ;  United  States  v.  La  Vengeance,  3  Ball. 
297  ;  Webster  v.  Reid,  11  How.  437  ;  Bains  v.  The  Schooner  James 
&  Catherine,  Bald.  544;  Smith's  Const.  552,  554;  2  Graham  & 
Waterman,  30.  It  does  not  apply  to  an  examination  as  to  the 
claim  for  services  under  the  fugitive  slave  law.  Miller  v.  McQuerry, 
5  McLean,  469 ;  In  the  matter  of  Martin,  2  Paine,  348.  Nor  to  a 
motion  for  summary  relief.  Banning  v.  Taylor,  12  Harr.  289. 
What  is  the  The  phrase  "COMMON  LAW,"  as  used  in  this  section,  is  used  in 
common  contradistinction  to  equity,  and  admiralty,  and  maritime  jurispru 
dence.  Parsons  v.  Bedford,  3  Pet.  446;  Story's  Const.  §  1769; 
Smith's  Const.  552.  It  is  reconcilable  with  the  3d  article,  and  the 
several  acts  of  Congress  about  jury  trials.  Id.  446.  Neither  this 
article,  nor  the  act  of  1824,  gives  to  the  Supreme  Court  the  right  to 
revise  the  verdict  of  the  jury  upon  the  facts.  Id.  446,  447.  The 
common  law,  or  lex  non  scripta,  means  those  immemorial  customs  of 
England,  whereof  the  memory  of  man  runneth  not  to  the  contrary. 
1  Bl.  Corn.  62. 

The  right  to  trial  by  jury  is  for  the  benefit  of  the  parties  litigating, 
and  may  be  waived  by  them.  United  States  v.  Itathbone,  2  Paine, 
578.  But  the  circuit  courts  have  no  power  to  order  a  peremptory 
nonsuit  against  the  will  of  the  plaintiff.  Elmore  v.  Grymes,  1  Pet. 
469  ;  D'\Volf  v.  Rabaud,  Id.  476;  Crane  v.  Lessee  of  Morris,  6  Id. 
598;  Thompson  v.  Campbell,  Hemp.  8.  The  common  law  here 
alluded  to,  is  not  the  common  law  of  any  individual  State,  but  the 
common  law  of  England  ;  according  to  which,  facts  once  tried  by  a 
jury  are  never  re-examined,  unless  a  new  trial  be  granted,  in  the 
discretion  of  the  court  before  which  the  suit  is  depending,  for  good 
cause  shown;  or  unless  the  judgment  of  such  court  be  reversed  by 
a  superior  tribunal  on  a  writ  of  error,  and  a  venire  facias  de  novo 
awarded.  United  States  v.  Wouson,  1  Gall.  20.  The  government 
is  as  much  bound  by  this  provision  as  any  other  party  who  may 
desire  to  collect  a  debt.  9  Op.  200. 


For  whose 
benefit  is 
the  trial  by 
jury? 


Arts.  VII,  VIII.]    EXCESSIVE  BAIL,  264-267.  267 

It  has  been  well  settled,  thnt  the  amendments  to  the  Constitution  2T7  -279. 
of  the  United  States  were  never  intended  to  control  the  proceedings 
of  the  State  courts.  (Wood  v.  Wood,  2  Cowen,  819,  note;  Murphy 
v.  The  People,  2  Cowen,  815;  Livingston  v.  Mayor  of  New  York, 
8  Wend.  85,  100;  Warren  v.  Mayor  of  Baltimore,  7  Peters,  250; 
Livingston  v.  Moore,  7  Peters,  551;  Colt  v.  Evers,  12  Conn.  243; 
In  the  matter  of  Smith,  10  Wend.  Rep.  449;  Lea  v.  Tillotson,  24 
Wend.  337.)  2  Graham  &  Waterman's  New  Trials,  p.  31,  note, 

264.  AXD  NO  FACT  TRIED  BY  JURY  SHALL  BE  RE-EXAMINED, 
&c. — See  a  discussion  on  the  original  Constitution  (prior  to  this 
amendment),  which  gave  appellate  jurisdiction  "  both  as  to  law  and 
fnct^     Story's   Const.   §  1763-1770.  and   notes  to  third  edition: 
Federalist,  No,;.  81,  83.     And  see  1  Elliot's  Debates,  121,  122 ;  2  Id. 
346,   380-410;      Id.     413-427;    3     Elliot's    Debates,    139-157;    2 
American  Museum,  425,   534,  540,  548,   553;  3  Id.  318,  347,  419, 
420. 

The  amendment  struck  down  the  objection  ;  and  has  secured  the        211. 
trial  by  jury  in  civil  cases  in  the  fullest  latitude  of  the  common  law. 
(1   Tucker's  BL  Com.  A  pp.  351;    Rawle's  Const,  ch.   10,  p.  135; 
Bank   of  Hamilton   v.  Dudley,  2  Pet.  492,   525.)     Story's   Const. 
§  1568. 

This  is  a  prohibition  to  the  courts  of  the  United  States  to  re-ex 
amine  any  facts  tried  by  a  jury,  in  any  other  manner.  (Parsons  v. 
Bedford,  3  Pet.  447.)  Story's  Const.  §  1770.  It  is  denied  that 
the  judiciary  act  of  1789,  ch.  20,  §  17,  22,  24;  or  the  act  of  1824, 
has  given  the  right  to  the  Supreme  Court  to  grant  a  new  trial,  on 
the  mere  facts.  It  was  intimated  that  if  Congress  had  attempted 
to  confer  such  power,  the  act  would  be  unconstitutional.  Id. 

265.  RE-EXAMINTED  AFTER  VERDICT. — Sec.  5  of  the  act  of  3d        264. 
March,  1863  (13  St.  756),  so  far  as  it  authorizes  the  removal  of 
certain  causes  after  verdict,  and  a  trial  and  determination  of  the 

facts  and  the  law,  is  in  violation  of  this  amendment.  (14  Mass. 
412.)  Patrie  v.  Murray,  29  How.  Pr.  R.  312;  S.  C.  43  Barb.  323; 
Benjamin  v.  Murray,  28  How.  N.  Y.  R.  193.  And  see  The  People 
v.  Murray,  5  Park.  Cr.  577. 

And  see  Spencer  v.  Lapsley,  20  How.  267  ;  Martin  Insurance 
Co.  v.  Hodgson,  6  Cr.  206;  Sims  v.  Hundley,  6  How.  1. 

ARTICLE  VIII. 

Excessive  bail  shall  not  be  required,  nor  excessive  What  is  tho 
fines  imposed,  nor  cruel  and  unusual  punishments  in- bail,  fines, 

/,.          ,  arid  punish- 

fllCted.  meats? 

266.  "EXCESSIVE  BAIL." — BAIL  is  a  delivery  from  custody  on  What  ia 
security.     Bun-ill's  Law  Die.,  BAIL.     The  meaning  is,  that  the  sum  bail? 
required  shall  not  be  too  large.     Bail  should  not  be  fixed  in  crim 
inal  cases  at  a  sum  so  large  as  purposely  to  prevent  the  prisoner 

from  giving  bail.     United  States  v.  Lawrence,  4  Cr.  518. 

267.  "  NOR  EXCESSIVE  FINES,  IMPOSED." — The  offense  charged 
was  the  keeping  and  maintaining,  without  license,  a  tenement  for 


268  RESERVED  RIGHTS,    267,   268.      [Amendments, 

Give  an  the  illegal  sale  and  illegal  keeping  of  intoxicating  liquors.  It  ap- 
pears  from  the  record  that  the  fine  and  punishment  in  the  case  be- 
f°re  us  was  r^7  dollars,  and  imprisonment  at  hard  labor  in  the 
house  of  correction  for  three  months.  We  perceive  nothing1  ex 
cessive,  or  cruel,  or  unusual  in  this.  The  object  of  the  law  was  to 
protect  the  community  against  the  manifold  evils  of  intemperance. 
The  mode  adopted,  of  prohibiting  under  penalties  the  sale  Jind 
233.  keeping  for  sale  of  intoxicating  liquors,  without  license,  is  the 
usual  mode  adopted  in  many,  perhaps  all,  of  the  States.  It  is 
wholly  within  the  discretion  of  State  legislatures.  Pervear  v.  The 
Commonwealth,  5  Wall.  480.  The  amendment  is  an  exact  tran 
script  of  a  clause  in  the  English  Bill  of  Rights  of  1688.  It  was 
intended  to  warn  our  government  against  such  violent  proceedings. 
See  5  Oobbett's  Parl.  Hist.  110;  2  Elliot's  Debates,  345 ;  3  Id. 
345;  2  Lloyd's  Debates,  225,  226;  Rawle's  Const,  ch.  10,  pp.  130, 
131;  Story's  Const.  §  1903,  1904. 

This  amendment  docs  not  apply  to  the   States,  but  only  restricts 
the   national   government.     (Barker  v.   The  People,  3  Cow.  686 
James  v.   Commonwealth,  12   Sergt.   and  Rawle,  220  ;  Barren  v. 
The  Mayor  of  Baltimore,  7  Pet.  243.)     Story's  Const.  §  1904;  Per 
vear  v.  The  Commonwealth,  5  Wall.  480. 

14  CRUEL  AND  UNUSUAL  PUNISHMENTS." — The  disfranchisement  of 
a  citizen  is  not  an  unusual  punishment.  Barber  v.  The  People,  20 
Johns.  459.  The  punishments  of  whipping  and  standing  in  the 
pillory  are  abolished  by  act  28th  February,  1839,  §  5,  Stat.  322. 
See  James  v.  Commonwealth,  12  S.  &  R.  220. 

ARTICLE  IX. 

What  of  the     The   enumeration  in   the   Constitution   of   certain 
rights?       rights,  shall  not  be   construed   to  deny  or  disparage 
others  retained  by  the  people. 

What  is  268.    "ENUMERATION."— [Lat.   Enumero.] — The    counting    or 

enuinera-      telling  by  numbers.     Webster's  Die.,  ENUMERATION. 

7M38.  "°F  CERTA™  RIGHTS."— This    has    reference    to    the  several 

general  and  special  POWERS  granted,  surrendered,  or  delegated  to 

the  different  departments  of  the  government.     It  was  intended  to 

For  what      prevent  any  perverse  or   ingenious   misapplication  of  the  maxims, 

Wa8  td°     t  ^ia*  an  an^riuat^on    *n  particular  cases  implied  a  negation  in  all 

iSeuded6?11    otners  5  and>  e  converse,  that  a  negation  in  particular  cases  implies 

an  affirmation  in  all  others.    (Federalist,  Nos.  83,  84;  No.  83  is 

reprinted   in   Story's   Const.  §  1768,  3d  ed.  pp.  574-582).    Story's 

Const.  §  1 905.     See  also  Id.  §  448. 

Define  "DENY." — [Lat.   denego.] — To  contradict;  gainsay;  disown;  ro- 

"deny"?       ject      Webster's  Die ,  DENY. 

Define  "dis-      "DISPARAGE" — [Norman,  desperegar]. — This  word  is  strangely 
parage"?       used  here.     It  literally  means  to  dishonor  by  an  unequal  match  or 
marriage;  to  match  unequally;  to  dishonor  or  injure  by  comparison 
with  something  of  less  value  or  excellence ;  to  undervalue.    Web 
ster's  Die.,  DISPARAGE. 


Arts.  IX.-XL]  DELEGATED   POWERS,    269. 

"  EETAINED  BY  THE  PEOPLE." — "  PEOPLE  "  here  must  be  used  in  6,  209, 251, 
the   sense   of  "  WE  THE   PEOPLE  "  in    the   preamble,  and   in  the  25t)« 
tenth  amendment.    To  illustrate  the  right  of  appeal  "  upon  the  law 
and  facts,"  was  given  to  the  Supreme  Court.   It  had  been  objected,  260-262, 
that  this  denied' or  disparaged  the  right  of  trial  by  jury,  as  under-  276-277. 
stood  at  common  law.     Hence  the  sixth  amendment.     Federalist, 
No.  83.     And  hence  the  declaration  of  the  same  general  principle 
in  this  amendment. 

ARTICLE  X. 

The  powers  not   delegated   to   the  United  States  HOW  are 
by    the    Constitution,    nor  prohibited    by  it  to   thenotp°w 
States,  are  reserved  to  the   States  respectively  or 
the  people. 

269.  "  THE  POWERS  "  of  course  mean  all  those  which  had  been  what  are 
committed  to  the  different  departments  of  the  government.  the 

"  DELEGATED." — [Lat.  Delego]. — To  intrust ;  to  commit ;  to  deliver  powf?s  ? 
to  another's  care  and  exercise.     Webster's  Die.,  DELEGATE.  71-138, 162, 

The  secessionists  laid  great  stress  upon  the  word  "delegate,"  and  every 
and  attached  to  it  the  meaning  that  the  States  had,  in  fact,  surren-  note'  g 
dered  none  of  their  sovereignty;  but  only  created  a  common 
agency  with  certain  powers,  in  trust,  which  each  State,  for  itself, 
had  the  right  to  resume  at  pleasure.  The  "  nor  prohibited  to  the 
States,"  could  have  little  force  with  those  holding  such  doctrines. 
It  has  been  so  fashionable  to  interpolate,  "  expressly,"  that  many 
believe  the  participle  "delegated"  is  so  qualified.  But  such  a 
qualification  was  moved  in  Congress  and  rejected.  2" Lloyd's  De 
bates,  234,  243,  244 ;  McCulloch  v.  Maryland,  4  Wheat.  404 ;  Mar 
tin  v.  Hunter,  1  Wheat.  325 ;  Houston  v.  Moore,  5  Wheat.  49 ; 
Anderson  v.  Dunn,  6  Wheat.  225,  226;  2  Article  of  Confederation, 
ante,  p.  9.  See  Ableman  v.  Booth,  21  How.  596. 

All  powers  not  delegated  (not  all  not  expressly  delegated)  and 
not  prohibited  are  reserved.  (McCulloch  v.  Maryland,  4  Wheat. 
406,  407.)  Story's  Const.  §  1908. 

See  United  States  v.  Bailey,  1  McLean,  234.  The  same  reserva- 133, 155. 
tion,  in  substance,  was  contained  in  the  second  article  of  the  Arti 
cles  of  Confederation,  except  that  the  word  "expressly"  was  there 
placed  before  the  word  "  delegated."  Metropolitan  Bank  v.  Van 
Dyck,  27  N.  Y.  Rep.  416;  McCulloch  v.  Maryland,  4  Wh.  327. 
See  ante,  p.  9.  This  amendment  compared  with  the  9th  section 
of  the  1st  article.  They  contain  no  inhibition  upon  Congress  to 
legislate  upon  legal  tenders.  Metropolitan  Bank  v.  Van  Dyck,  27 
N.  Y.  Rep.  418. 

ARTICLE  XI. 
The  judicial  power  of  the  United  States  shall  not  what  is  the 

,  -,.  ...  .,     .       ,  .,      limitation 

be  construed  to  extend  to  any  suit  in  law  or  equity  of  judicial 
commenced  or  prosecuted  against  one  of  the  United  pow 


270 


JUDICIAL  POWER,   270-272.         [Amendments, 


205a,  210, 
2T1- 


What  is 
now  tho 


States,  by  citizens  of  another  State,  or  by  citizens  or 
subjects  of  any  foreign  State. 

What  caused  27O.  "THE  JUDICIAL  POWER,"  and  "ANT  SUITS  IN  LAW  OR 
men??"  EQUITY,"  are  to  be  taken  as  an  amendment  of  the  first  section  of 
195,  199,  200,  the  third  article,  so  as  to  take  away  the  jurisdiction  of  suits  against 
'  States  by  individuals.  The  amendment  was  caused  by  the  decision 
in  Chisholm  v.  Georgia,  2  Dallas,  419,  475;  S.  C.  2  Cond.  635;  1 
Kent's  Com.  Lect.  14,  p.  278;  Cohens  v.  Virginia,.  6  Wheat.  381, 
406. 

This  decision  held  that  the  original  Constitution  embraced  suits 
ly  as  well  as  against  States.  Story's  Const.  §  1G83.  See  Federalist, 
Nos.  80,  81;  2  Elliot's  Debates,  300,  301,  401,  405;  Curtis'  Com. 
§  61.  The  suits  against  the  States  were  principally  for  money  se- 
questrated  or  confiscated  in  the  hands  of  the  debtors  of  the  British 
loyalists.  The  amendment  was  held  to  extend  to  all  pending  suits, 
and  they  were  dismissed.  Hollingsworth  v.  Virginia,  3  Dall.  378  ; 
Cohens  v.  Virginia,  6  Wheat.  294  ;  Georgia  v.  Brailsford,  2  Dall. 
402;  S.  C.  3  Dall.  1. 

So  that  now  no  suit  lies  by  citizen  or  alien  against  a  State,  in  the 
courts  of  the  United  States. 

In  what  271.  "AGAINST   ON*E  OF  THE  UNITED   STATES."  —  Where   tho 

State  is  sued,  and  made  a  party  on  the  record  in  its  political  capaci- 
ty,  this  amendment  applies;  and  the  State  may  be  considered  as 
a  party  on  the  record  when  its  chief  magistrate  is  sued,  not  by  his 
name,  but  by  his  style  of  office,  and  the  claim  made  upon  him 
is  entirely  in  his  official  character.  (The  Governor  of  Georgia  v. 
Madrazo,  1  Pet.  110,  123,  124.)  Curtis'  Com.  §  67-70. 

This  amendment  was  construed  to  include  suits  then  pending,  as 
we^  as  sints  ^°  ^e  coramenced  thereafter  ;  and  accordingly,  all  the 
suits  then  pending  were  dismissed  without  any  further  adjudica 
tion.  (Hollingsworth  v.  Virginia,  3  Dall.  378.)  Story's  Const. 
§  1683.  For  a  history  of  the  amendment,  see  Cohens  v.  Virginia, 
6  Wheat.  406. 

The  amendment  only  applies  to  original  suits  ;  not  to  appeals  or 
writs  of  error  for  revision.  (Cohens  v.  Virginia,  6  Wheat.  264.) 
Story's  Const.  §  1864. 

272.  "  BY  CITIZENS  OR  SUBJECTS  OF  ANY  FOREIGN  STATE."  — 
The  power  of  these  to  sue  the  State  was  simply  taken  away  by 
the  amendment. 

Docs  the  It  does  not  extend  to  suits  of  admiralty  or  maritime  jurisdiction. 

suit  apply  to  Olmstead's  Case,  Brightly,  9.  See  Ex  parte  Madrazo,  1  Pet.  127. 
^  tue  State  be  not  necessarily  a  defendant,  though  its  interest 
may  be  affected  by  the  decision,  the  courts  of  the  United  States 
are  bound  to  exercise  jurisdiction.  Louisville  R.  R.  Co.  v.  Letson, 
2  How.  550;  United  States  v.  Peters,  5  Cr.  115.  For  the  history 
of  this  amendment,  see  Chisholm  v.  Georgia,  2  Dall.  471,  475.  A 
State,  by  becoming  interested  with  others  in  a  banking  or  trading 
corporation,  or  by  owning  all  tho  capital  stock,  does  not  impart  to 
that  corporation  any  of  its  privileges  or  prerogatives  ;  it  lays  down 
its  sovereignty,  so  far  as  respects  the  transactions  of  the  corpora- 


butesue? 


What  suits 


casc 


205a 


Arts.  XI.-XIIL]   SLAVERY  ABOLISHED,  273,  274.  271 

tion,  and  exercises  no  power  or  privilege  in  respect  to  those  transac 
tions  not  derived  from  the  charter.  Bank  of  the  United  States  v. 
Planter's  Bank  of  Georgia,  9  Wh.  904 ;  Bank  pf  Kentucky  v.  Wis- 
ton,  3  Pet.  43  1  ;  Briscoe  v.  Bank  of  Kentucky,  1 1  Id.  324 ;  Louisville 
R.  R.  Co.  v.  Letson,  2  How.  41J7  ;  Darrington  v.  Bank  of  Alabama, 
13  How.  12  ;  Curran  v.  Arkansas,  15  Id.  309.  And  see  Cohens  v. 
Virginia,  6  Wh.  264.  Where  a  State  sues  in  its  own  courts,  and 
obtains  a  judgment  against  a  citizen,  the  defendant  may  prosecute 
a  writ  of  error  in  the  Supreme  Court,  and  test  the  constitutionality 
of  a  State  law.  Craig  v.  Missouri,  4  Pet.  410;  and  the  Arkansas, 
Kentucky,  and  Alabama  cases  above  cited. 

The  State  is  not  a  party  unless  it  appears  on  the  record  as  such,  205, 271. 
either  as  plaintiff  or  defendant.  It  is  not  sufficient  that  it  may  have 
an  interest  in  the  cause,  or  that  the  parties  before  the  court  are 
sued  for  acts  done  as  agents  of  the  State.  (Fowler  v.  Lindsay,  3 
Ball.  411;  State  of  New  York  v.  Connecticut,  3  DalL  1-6;  United 
States  v.  Peters,  5  Cr.  115-139;  1  Kent's  Com.  Lect.  15,  p.  302; 
Osborn  v.  Bank  of  United  States,  9  Wheat.  846.)  Story's  Const 
§  1865,  notes  1,  2. 

ARTICLE  XII. 

273.  See  Art.  II.,  Sec.  3,  pp.  164-166,  notes  168,  168o>  168&,  for 
this  amendment.     It  was  considered  proper  by  the  editor  to  trans 
fer  it  to  its  appropriate  place.    It  does  not  disturb  the  arrangement 
in  the  original  Constitution,  nor  in  the  analysis  and  index.     See 
arafe,  p.  46. 

ARTICLE  XIIL 

1 .  Neither  slavery  nor  involuntary  servitude,  except  HOW  was 
as  a  punishment  for  crime,  whereof  the  party  shall  aboKjd? 
have    been   duly   convicted,    shall   exist   within   the 
United   States,  or  any  place    subject  to   their  juris 
diction. 

2.  Congress  shall  have  power  to  enforce  this  article  The  power? 
by  appropriate  legislation. 

274.  The  following  is  the  proclamation  which  declared  the  1 3th  When  did 
amendment  in  force  : —  this  article 

WILLIAM  H.  SEWARD,  Secretary  of  State  of  the  United  States, takee! 
to  all  to  whom  these  presents  may  come,  greeting : 

Know  ye,  that  whereas  the  Congress  of  the  United  States,  on 
the  1st  of  February  last,  passed  a  resolution  which  is  in  the  words 
following,  namely: — 

"  A  Resolution  submitting  to  the  Legislatures  of  the  several  States  a 
proposition  to  amend  the  Constitution  of  the  United  States. 

"  Resolved  by  the  Senate  and  House  of  Representatives  of  the  United 
States  of  America,  in  Congress  assembled  (two-thirds  of  both  houses 


272  SLAVEEY  ABOLISHED,   274.      [Amendment's, 

concurring),  That  the  following  article  be  proposed  to  the  legis 
latures  of  the  several  States  as  au  amendment  to  the  Constitution 
of  the  United  States,  which,  when  ratified  by  three-fourths  of 
said  legislatures,  shall  be  valid,  to  all  intents  and  purposes,  as  a 
part  of  the  said  Constitution,  namely:" — [Here  follows  the  amend 
ment.] 

And  whereas  it  appears  from  official  documents  on  file  in 
this  department  that  the  amendment  to  the  Constitution  of  the 
United  States  proposed,  as  aforesaid,  has  been  ratified  by  the  legis 
latures  of  the  States  of  Illinois,  Rhode  Island,  Michigan,  Maryland, 
New  York,  West  Virginia,  Maine,  Kansas,  Massachusetts,  Penn 
sylvania,  Virginia,  Ohio,  Missouri,  Nevada,  Indiana,  Louisiana, 
Minnesota,  Wisconsin,  Vermont,  Tennessee,  Arkansas,  Connecti 
cut,  New  Hampshire,  South  Carolina,  Alabama,  North  Carolina, 
and  Georgia ;  in  all  twenty-seven  States : 

And  whereas  the  whole  number  of  States  in  the  United  States 
is  thirty-six;  and  whereas  the  before  specially -atmed  States, 
•whose  legislatures  have  ratified  the  said  proposed  amendment, 
constitute  three-fourths  of  the  whole  number  of  States  in  the 
United  States : 

Now,  therefore,  be  it  known  that  I,  WILLIAM  H.  SEWARD,  Secre 
tary  of  State  of  the  United  States,  by  virtue  and  in  pursuance  of 
the  second  section  of  the  act  of  Congress,  approved  the  twentieth 
of  April,  eighteen  hundred  and  eighteen,  entitled  "  An  act  to  pro 
vide  for  the  publication  of  the  laws  of  the  United  States  and  for 
other  purposes,"  do  hereby  certify  that  the  amendment  aforesaid 
has  become  valid,  to  all  intents  and  purposes,  as  a  part  of  the 
Constitution  of  the  United  States. 

In  testimony  whereof,  I  have  hereunto  set  my  hand,  and  caused 
the  seal  of  the  Department  of  State  to  be  affixed. 

Done  at  the  city  of  Washington,  this  eighteenth  day  of  Decem 
ber,  in  the  year  of  our  Lord  one  thousand  eight  hundred  and  sixty- 
five,  and  of  the  independence  of  the  United  States  of  America,  the 
ninetieth. 

[L.  s.]  WILLIAM  H.  SEWARD, 

Secretary  of  State. 

17, 275.  This  proclamation  is  given  to  show  the  views  of  the  executive, 

that  the  seceded  States  had  a  right  to  vote  upon  the  amendment, 
and  did  in  fact,  make  up  the  number  necessary  to  put  it  into  op 
eration.  The  President  had  previously  given  notice,  that  no  State 
would  be  regarded  as  restored  until  it  adopted  this  amendment. 
Se ward's  dispatch  to  the  governor  of  Florida. 

List  of  States  which  have  ratified  the  amendment  to  the  Consti 
tution  prohibit'ng  slavery,  &c.,  and  given  official  notice  thereof, 
with  the  respective  dates  of  ratification  : — 

In  1865.— Illinois,  Feb.  1;  Rhode  Island,  Feb.  2;  Michigan, 
Feb.  2;  Maryland,  Feb.  1,  3,;  New  York,  Feb.  2,  3,;  West  Virginia, 
Feb.  3 ;  Maine,  Feb.  7  ;  Kansas,  Feb.  7  ;  Massachusetts,  Feb.  8  , 
Pennsylvania,  Feb.  8;  Virginia,  Feb.  9;  Ohio,  Feb.  10;  Missouri, 
Feb.  10;  Nevada,  Feb.  16;  Indiana,  Feb.  16;  Louisiana,  Feb.  17; 
Minnesota,  Feb.  8,  23 ;  Wisconsin,  March  1 ;  Vermont,  March  9  -, 
Tennessee,  April  5, 7;  Arkansas,  April  20;  Connecticut,  May  5; 


Art.  XIII.]  CITIZENSHIP,    274.  273 

New  Hampshire,  July  1 ;  South  Carolina,  Nov.  13  ;  Alabama,  Dec. 
2  ;  North  Carolina,  Dec.  4 ;  Georgia,  Dec.  9 ;  Oregon,  Dec.  1 1 ; 
California,  Dec  20;  Florida,  Dec.  28  In  1866. — New  Jersey,  Jan. 
23;  Iowa,  Jan.  '24. 

It  will  thus  be  seen  that  the  States  which  have  not  ratified  the 
amendment  are  Delaware,  Kentucky,  Mississippi,  and  Texas. 
Delaware  alone,  of  these,  gave  notice  through  the  governor,  of  the 
rejection.  Governor  Parker  of  New  Jersey,  gave  notice  of  rejec 
tion  on  the  first  of  December,  1865;  but  the  same  State  afterward 
ratified  it. 

Because  of  this  amendment  Congress  had  the  right  to  pass  the 
Civil  Bights  Bill  to  secure  the  citizenship  of  the  negro.  Smith  v. 
Moody,  26  Ind.  307. 

In  the  matter  of  Elizabeth  Turner,  on  Habeas  Corpus,  by  Chief- 
Justice  Chase  (Maryland,  1867).     And  because  of  the  Civil  Eights 
Bill,  the  United  States  Circuit  Court  had  jurisdiction  of  a  Habeas  6, 18,  220. 
Corpus  case,  to  relieve  a  child  of  color  from  an  apprenticeship,  under 
the  laws  of  Maryland,  which  were  in  conflict  with  that  law.     Id. 

The  apprenticeship,  among  other  things,  allowed  the  assignment 
of  the  apprentice's  services  by  the  master,  with  the  sanction  of  the 
orphan's  court.  The  Chief-Justice  said :  "  The  following  proposi 
tions  seem  to  me  to  be  sound  law,  and  they  decide  the  case :  First. 
The  first  clause  of  the  thirteenth  amendment  to  the  Constitution 
of  the  United  States  interdicts  slavery  and  involuntary  servitude, 
except  as  a  punishment  for  crime,  and  establishes  freedom  as  the 
constitutional  right  of  all  persons  in  the  United  States.  Second. 
The  alleged  apprenticeship  in  the  present  case  is  involuntary  ser 
vitude  within  the  meaning  of  these  words  in  the  amendment."  Id. 

This  amendment  is  the  last  one  made.  It  trenches  directly  upon 
the  power  of  the  States  and  of  the  people  Oi  tbe  States.  It  is  the 
first  and  only  instance  of  a  change  of  this  character  in  the  organic 
law.  United  States  v.  Rhodes  (by  Justice  Swayne,  Kentucky,  Oct. 
T.  1867). 

The  act  of  Congress  (the  Civil  Rights  Bill)  confers  citizenship.  Who  are 
The   Constitution  uses  the   words   "citizen"  and   "natural  born  citizens  of 
citizen;"    but  neither  that  instrument   nor   any  act  of  Congress  united 
has  attempted  to  define  their  meaning.     In  Johnson's  Dictionary,  states  ? 
"citizen"  is  thus  defined:     "(1)  A   freeman   of   a   city;    not    a  18,19,35, 46, 
foreigner;  not  a  slave;  (2)  a  townsman,   a  man  of  trade;  not  a  206  220-222* 
gentleman;    (3)   an    inhabitant;  a    dweller    in    any   place."      In 
Jacob's  Law  Dictionary  (edition  of  1783)  the  only  definition  given 
is  as  follows :   "  Citizens  (cives)  of  London  are  either  freemen  or  such 
as  reside  and  keep  a  family  in  the  city,  &c. ;  and  some  are  citizens 
and  freemen,  and  some  are  not,  who  have  not  so  great  privileges  as 
others.     The  citizens  of  London  may  prescribe  against  a  statute 
because  their  liberties  are  re-enforced  by  statute.    (1  Roll.  105.)"    Id. 

"  The  word  civis,  taken  in  the  strictest  sense,  extends  only  to 
him  that  is  entitled  to  the  privileges  of  a  city  of  which  he  is  a  mem 
ber,  and  in  that  sense  there  is  a  distinction  between  a  citizen  and 
an  inhabitant  within  the  same  city,  for  every  inhabitant  there  is  not 
a  citizen."  (Scott  qui  tarn  v.  Swartz,  Com.  Rep.  68.)  Id. 

"  A  citizen  is  a  freeman  who  has  kept  a  family  in  a  city."     (Roy 
V.  Hanger,  1  Roll.  Rep.  138,  149.)    Id. 
12* 


274  CITIZENSHIP,   274.  [Amendments, 

"The  term  citizen,  as  understood  in  our  law,  is  precisely  analo 
gous  to  the  term  subject  in  the  common  law ;  and  the  change  of 
phrase  has  entirely  resulted  from  the  change  of  government.  The 
sovereignty  has  been  changed  from  one  man  to  the  collective  body 
of  the  people,  and  he  who  before  was  a  subject  of  the  king  is  now  a 
citizen  of  the  State."  (The  State  v.  Manuel,  4  Dev.  &  Batt,  26.)  Id. 
What  was  "  During  the  war  each  party  claimed  the  allegiance  of  the  natives 
thC  ^fleet-of  of  the  colonies  as  due  exclusively  to  itself.  The  Americans  insisted 
can  lievolii-  uPon  the  allegiance  of  all  born  within  the  States,  respectively ;  and 
tion  upon  Great  Britain  asserted  an  equally  exclusive  claim.  The  treaty  of 
p  ?  1783  acted  upon  the  state  of  things  as  it  existed  at  that  period.  It 
took  the  actual  state  of  things  as  its  basis.  All  those,  whether  na 
tives  or  otherwise,  who  then  adhered  to  the  American  States,  were 
virtually  absolved  from  their  allegiance  to  the  British  crown,  and 
those  who  then  adhered  to  the  British  crown  were  deemed  and 
held  subjects  of  that  crown.  The  treaty  of  peace  was  a  treaty 
operating  between  the  States  on  each  side,  and  the  inhabitants 
thereof:  in  the  language  of  the  seventh  article,  it  was  a  'firm  and 
perpetual  peace  between  his  British  majesty  and  the  said  States, 
a,nd  between  the  subjects  of  the  one  and  the  citizens  of  the  other  S  Who 
then  were  subjects  or  citizens  was  to  be  decided  by  the  state  of  facts. 
If  they  were  originally  subjects  of  Great  Britain  and  then  adhered 
to  her,  and  were  claimed  by  her  as  subjects,  the  treaty  deemed  them 
such;  if  they  were  originally  British  subjects,  but  then  adhering  to 
the  states,  the  treaty  deemed  them  citizens."  (Shanks  v.  Dupont, 
3  Pet.  247.)  United  States  v.  Rhodes  (Justice  Swayne). 

All  persons  born  in  the  allegiance  of  the  king  are  natural  born 
subjects,  and  all  persons  born  in  the  allegiance  of  the  United  States 
are  natural  born  citizens.  Birth  and  allegiance  go  together.  Such 
is  the  rule  of  the  common  law,  and  it  is  the  common  law  of  this 
country  as  well  as  of  England.  There  are  two  exceptions,  and  only 
two,  to  the  universality  of  its  application.  The  children  of  ambas 
sadors  are,  in  theory,  born  in  the  allegiance  of  the  powers  the  am 
bassadors  represent,  and  slaves,  in  legal  contemplation,  are  prop 
erty,  and  not  persons.  (2  Kent's  Com.  3d  ed.  1 ;  Calvin's  Case,  7 
Coke,  1 ;  1  Black.  Com.  366 ;  Lynch  v.  Clark,  1  Sandf.  Ch.  Rep.  139.) 
The  common  law  has  made  no  distinction  on  account  of  race  or 
color.  None  is  now  made  in  England  nor  in  any  other  Christian 
country  of  Europe.  The  fourth  of  the  articles  of  confederation, 
(ante,  p.  10)  quoted;  also  Scott  v.  Sandford,  19  How.  575.  Id. 
When  the  Constitution  was  adopted,  free  men  of  color  were  clothed 
with  the  franchise  of  voting  in  at  least  five  States,  and  were  a  part 
of  the  people  whose  sanction  breathed  into  it  the  breath  of  life. 
(Scott  v.  Sandford,  19  How.  573;  The  State  v.  Manuel,  2  Dev.  & 
Batt.  24,  25.)  United  States  v.  Rhodes. 

"  Citizens  under  our  Constitution  and  laws  mean  free  inhabitants 
born  within  the  United  States  or  naturalized  under  the  laws  of 
Congress."  (1  Kent's  Com.  292,  note.)  It  is  further  said  in  the 
note  in  1st  Kent's  Commentaries,  before  referred  to:  "If  a  slave 
born  in  the  United  States  be  manumitted  or  otherwise  lawfully  dis 
charged  from  bondage,  or  if  a  black  man  born  in  the  United  States 
become  free,  he  becomes  thenceforward  a  citizen,  but  under  such 
disabilities  as  the  laws  of  the  several  States  may  deem  it  expe 
dient  to  prescribe  to  persons  of  color."  i*1 


Art.  XIIL]  CITIZENSHIP,   274.  275 

In  the  case  of  the  State  v.  Manuel  it  was  remarked:  "  It  has  been  18,  220. 
said  that,  by  the  Constitution  of  the  United  States,  the  power  of 
naturalization  has  been  conferred  exclusively  upon  Congress,  and 
therefore  it  cannot  be  competent  for  any  State  by  its  municipal 
regulations  to  make  a  citizen.  But  what  is  naturalization?  It  is 
the  removal  of  the  disabilities  of  alienage.  Emancipation  is  the 
removal  of  the  incapacity  of  slavery.  The  latter  depends  wholly 
upon  the  internal  regulations  of  the  State.  The  former  belongs  to 
the  government  of  the  United  States.  It  would  be  dangerous  to 
confound  them."  (The  State  v.  Manuel,  2  Dev.  &  Batt.  25 ;  The 
State  v.  Newcomb,  5  Iredell,  253.)  Id. 

We  cannot  deny  the  assent  of  our  judgment  to  the  soundness  of 
the  proposition,  that  the  emancipation  of  a  native-born  slave  by  re 
moving  the  disability  of  slavery  made  him  a  citizen.  If  these  views 
be  correct,  the  provision  in  the  act  of  Congress  conferring  citizen 
ship  was  unnecessary  and  is  inoperative.  Granting  this  to  be  so, 
it  was  well,  if  Congress  had  the  power,  to  insert  it,  in  order  to  pre 
vent  doubts  and  differences  of  opinion  which  might  otherwise  have 
existed  upon  the  subject.  We  are  aware  that  a  majority  of  the 
court  in  the  case  of  Scott  v.  Sandford,  arrived  at  conclusions  differ 
ent  from  those  we  have  expressed.  But  in  our  judgment  these 
points  were  not  before  them.  They  decided  that  the  whole  case, 
including  the  agreed  facts,  was  open  to  their  examination,  and  that 
Scott  was  a  slave.  This  central  and  controlling  fact  excluded  all 
other  questions,  and  what  was  said  upon  them  by  those  of  the  ma 
jority,  with  whatever  learning  and  ability  the  argument  was  con 
ducted,  is  no  more  binding  upon  this  court  as  authority  than  the 
views  of  the  minority  upon  the  same  subjects.  (Carroll  v.  Carroll, 
16  How.  287.)  Id. 

Citizenship  has  no  necessary  connection  with  the  franchise  of  What  is  the 
voting,  eligibility  to  office,  or  indeed  with  any  other  rights,  civil  or  po-  effect  of 
litical.   Women,  minors,  and  persons  non  compos  are  citizens,  and  not  "p^ ns  !lp 
the  less  so  on  account  of  their  disabilities.    In  England,  not  to  advert  suffrage  ? 
to  the  various  local  regulations,  the  new  reform  bill  gives  the  right  18>  22°- 
of  voting  for  members  of  Parliament  to  about  eight  hundred  thou 
sand  persons  from  whom  it  was  before  withheld.     There,  the  sub 
ject  is  wholly  within  the  control  of  Parliament.     Here,  until  the 
J3th  amendment  was  adopted,  the  power  belonged  entirely  to  the 
States,  and  they  exercised  it  without  question  from  any  quarter,  as 
absolutely  as  if  they  were  not  members  of  the  Union.     Id. 

Our  attention  has  been  called  to  several  treaties  by  which  In 
dians  were  made  citizens;  to  those  by  which  Louisiana,  Florida,  and 
California  were  acquired,  and  to  the  act  passed  in  relation  to  Texas.  220,  230, 117. 
All  this  was  done  under  the  war  and  treaty-making  powers  of  the 
Constitution,  and  those  which  authorize  the  national  government 
to  regulate  the  territory  and  other  property  of  the  United  States, 
and  to  admit  new  States  into  the  Union.  (American  Ins.  Co.  v. 
Canter,  :  Pet.  511;  Cross  v.  Harrison,  16  llow.  164;  2  Story's  Const 
158.)  Id. 

Congress  has  power  "  to  establish  an  uniform  rule  of  naturali 
zation."  Art.  1,  Sec.  8.  After  considerable  fluctuation  of  judicial 
opinion  it  was  finally  settled,  by  the  Supreme  Court,  that  this 


276  CITIZENSHIP,   274.  [Amendments, 

power  is  vested  exclusively  in  Congress.  (Collet  v.  Collet,  2  Ball. 
294;  United  States  v.  Yelati,  2  Ball.  370;  Golden  v.  Prince,  3 
Wash.  C.  C.  313  ;  Chirac  v.  Chirac,  2  Wheat.  259  ;  Houston  v. 
Moore,  2  Wheat.  49  ;  Federalist,  No.  32.)  United  States  v.  Rhodes. 
Id.  An  alien  naturalized  is  "to  all  intents  and  purposes  a 
natural  born  subject."  (Co.  Litt.  129.)  Id.  "Naturalization 
takes  effect  from  birth ;  denization  from  the  date  of  the  patent." 
(Yin.  Ab.  Tit.  Alien,  D.j  Id. 

The  form  under  the  English  act  of  Parliament  appears  in 
Godfrey  v.  Dickson,  Cro.  Jac.  539,  c.  7.  Under  the  late  act,  a 
resident  alien  may  accomplish  the  object  by  a  petition  to  the  Sec 
retary  of  State  for  the  Home  Department  Id. 

93.  The  power  is  applicable  only  to  those  of  foreign  birth.     Alienage 

is  an  indispensable  element  in  the  process.  To  make  one  of  domes 
tic  birth  a  citizen,  is  not  naturalization,  and  cannot  be  brought 
within  the  exercise  of  -that  power.  There  is  an  universal  agree 
ment  of  opinion  upon  this  subject.  (Scott  v.  Sandford,  19  How. 
p.  578;  2  Story's  Const.  44.)  Id.  It  was  well  remarked  by  one 
of  the  dissenting  judges,  in  Scott  v.  Sandford,  19  Howard,  586,  in 
regard  to  the  African  race:  " The  Constitution  has  not  excluded 
them,  and  since  that  has  conferred  on  Congress  the  power  to  natu 
ralize  colored  aliens,  it  certainly  shows  that  color  is  not  a  necessary 

267.  qualification  for  citizenship  under  the  Constitution  of  the  United 
States."  Id.  The  Constitution,  10th  amendment,  and  clause  2  of 
Sec.  2.  Art.  IV.,  and  generally  the  notes  thereon  (ante,  notes  220, 
221),  quoted.  Id. 

220-223.  What  the  several  States  under  the  original  Constitution  only 

could  have  done,  the  nation  has  done  by  the  thirteenth  amendment. 
An  occasion  for  the  exercise  of  this  power  by  the  States  may  not, 
perhaps  cannot,  hereafter  arise.  United  States  v.  Rhodes. 

The  thirteenth  amendment  quoted,  and  the  same  rules  of  inter 
pretation  applied  to  "APPROPRIATE  LEGISLATION."  That  is,  "op- 
propriate"  is  equivalent  to  "  necessary  and  proper."  (McCulloch 
v.  Maryland,  4  Wheat.  421-423.)  Id.  The  rule  in  the  United 

188.  States  v.  Coombs,  12  Pet.  72  ;  United  States  v.  Holliday,  3  Wall. 
407  ;  United  States  v.  Beavan,  3  Wheat.  390 ;  Prigg  v.  Pennsyl 
vania,  16  Pet.  60;  quoted  and  applied  as  to  the  general  power. 
Id.  [Out  of  its  place  it  may  be  noted,  that  under  the  power  to 

85.  regulate  commerce,  it  has  recently  been  ruled,  that  the  power  ex 
tends  to  commerce  on  land,  carried  on  by  railroads  which  are  parts 
of  lines  of  inter-State  communication,  as  well  as  to  commerce 
carried  on  by  vessels,  and  such  railroads  may  be  regulated  by  Con 
gress  as  well  as  steamboats.  By  Associate  Justice  Miller,  in  Gray 
v.  Clinton  Bridge,  American  Law  Register  (January,  1868),  pp.  149- 

89.  154.  The  power  to  regulate  commerce  is  the  power  to  regulate  the 
instruments  of  commerce.  (Cooley  v.  The  Board  of  Wardens,  12 
How.  316.)  Id.  And  it  extends  to  railroads  as  well  as  steam 
boats.  Id] 

195.  Since  the  organization  of  the  Supreme  Court,  but  three  acts  of 

Congress  have  been  pronounced  by  that  body  void  for  unconstitution- 

ality.    (Marbury  v.  Madison,  1  Cr.  137  ;  Scott  v.  Sandford.  19  How. 

393  ;  Exparte  Garland,  4  Wall.  334.)    United  States  v.  Rhodes. 

The   present   effect  of  the  amendment  was  to  abolish  slavery 


Art.  XIII.]  EMANCIPATION,    274.  277 

wherever  it  existed  within  the  jurisdiction  of  the  United  States. 
In  the  future  it  throws  its  protection  over  every  one,  of  every  race, 
color,  and  condition,  within  that  jurisdiction,  and  guards  them 
against  the  recurrence  of  the  evil.  Id. 

The  history  of  slavery,  and  the  State  legislation  which  followed 
its  destruction  given.  The  Civil  Rights  law  is  an  "appropriate" 
means  of  carrying  out  the  object  of  the  first  section  of  the  amend 
ment.  Id. 

It  would  be  a  remarkable  anomaly  if  the  national  government, 
without  this  amendment,  could  confer  citizen  ship  on  aliens  of  every 
race  or  color,  and  citizenship,  with  civil  and  political  rights,  on  the  IS,  220. 
"  inhabitants  "  of  Louisiana  and  Florida,  without  reference  to  race 
or  color,  and  cannot,  with  the  help  of  the  amendment,  confer  on 
those  of  the  African  race,  who  have  been  born  and  always  lived 
within  the  United  States,  all  that  this  law  seeks  to  give  them. 

It  was  passed  by  the  Congress  succeeding  the  one  which  pro 
posed  the  amendment.  Many  of  the  members  of  both  Houses 
were  the  same.  This  fact  is  not  without  weight  and  significance. 
(McCulloch  v.  Maryland,  4  Wheat.  401.)  Id. 

The  amendment  reversed  and  annulled  the  original  policy  of  the 
Constitution,  which  left  it  to  each  State  to  decide  exclusively  for 
itself  whether  slavery  should  or  should  not  exist  as  a  local  institu 
tion,  and  what  disabilities  should  attach  to  those  of  the  servile  race 
within  its  limits.  The  whites  needed  no  relief  nor  protection,  and 
they  are  practically  unaffected  by  the  amendment.  The  emancipa 
tion  which  it  wrought  was  an  act  of  great  national  grace,  and  was 
doubtless  intended  to  reach  further  in  its  effects,  as  to  every  one 
within  its  scope,  than  the  consequences  of  manumission  by  a 
private  individual.  We  entertain  no  doubt  of  the  constitutionality 
of  the  act  in  all  its  provisions.  It  gives  only  certain  civil  rights. 
We  are  not  unmindful  of  the  opinion  of  the  Court  of  Appeals  of 
Kentucky,  in  the  case  of  Brown  v.  The  Commonwealth.  With  all 
our  respect  for  the  eminent  tribunal  from  which  it  proceeded,  we 
have  found  ourselves  unable  to  concur  in  its  conclusions.  The 
constitutionality  of  the  act  is  sustained  by  the  Supreme  Court  of 
Indiana  and  the  Chief-Justice  of  the  Court  of  Appeals  of  Maryland, 
in  able  and  well-considered  opinions.  (Smith  v.  Moody,  26  Ind. 
307  ;  In  re  A.  II.  Somers.)  United  States  v.  Rhodes.  Id. 

The  niii  prius  courts  of  several  of  the  Southern  States  have  de 
cided  against  the  constitutionality  of  the  Civil  Rights  law  on 
various  grounds ;  but  the  editor  regrets  that  he  has  not  preserved 
the  newspaper  reports  of  their  decisions. 

Where  an  obligation  was  given  to  pay  £7,800  sterling  for  a  trans-  What  effecr; 
fer  of  the  vendor's  claim  to  the  services  of  153  apprentices  (whoj1^1  such  a 
had  been  slaves),  but  before  the  installments  fell  due,  the  slaves  il-Ia 
were  declared  free  and  obtained  their  freedom,  under  an  ordinance 
of  Berbice,  in  British  Guiana,  in  pursuance  of  the  act  of  3  and  4  W. 
IV.,  c.  73,  S.  10,  whereby  the  defendant  lost  the  services,  so  that  the 
covenant  of  warranty  of  title  failed;  held,  that  the  plaintiff  was  en 
titled  to  the  last  two  installments,  though  the  legislature  had  deter 
mined  the  apprenticeship  before  they  became  due.     Mittelho/.ezer 
V.  Pullarton,  6  Adolph.  &  Ellis,  989,  990. 


278  EMANCIPATION,   274.  [Amendments, 

Lord  Denman  :  "  My  brother  Wight-man  asked  what  would  have 
been  the  result  if,  at  the  end  of  the  year,  the  services  had  been 
determined  by  the  act  of  God.  And  to  this  no  sufficient  answer 
was  given."  Id.  1018.  The  plaintiff's  right  vested  when  the  bar 
gain  was  made ;  the  subsequent  interference  of  the  colonial  legis 
lature  does  not  prevent  his  recovering  what  was  then  stipulated. 
Id.  The  whole  question  is,  who  shall  bear  the  losses  occasioned  by 
a  vis  major.  And  that  depends  upon  the  question,  who  was  the 
proprietor  when  that  loss  was  occasioned.  Id. 

The  question  was  whether  the  defendants  were  liable  for  the 
value  of  slaves  purchased  in  Texas  in  September,  1863.  "I  have 
always  regarded  the  proclamation  of  the  President,  issued  on  the  1st 
January,  18(33,  declaring  the  negroes  free,  as  a  war  measure.  The 
President  did  not  base  his  right  to  issue  that  proclamation  upon  any 
clause  of  the  Constitution,  or  even  any  act  of  Congress.  It  was 
justified  by  the  necessities  of  the  war,  arid,  as  commander-in-chief 
of  the  army  and  navy  of  the  United  States,  he  resorted  to  it,  as  he 
himself  declared,  as  a  war  measure.  Its  operation  and  effect  de 
pended  wholly  upon  the  success  of  the  national  arms.  The  negroes 
were  set  free,  not  by  the  mere  declaration  of  the  President  that 
they  were  so,  but  by  force  of  arms.  Hence,  I  have  always  sup 
posed  that  slaves  who  occupied  certain  sections  of  the  country,  say 
in  Virginia  and  Tennessee,  and  who  first  fell  under  the  armed  con 
trol  of  the  Union,  were  free  sooner  than  those  in  Texas  or  the  ex 
treme  South.  If  the  proclamation  of  the  President,  of  itself,  mado 
slaves  free  persons,  then  every  negro  held  in  bondage  after  the  1st 
January,  1863,  is  now  entitled  to  sue  not  only  for  the  value  of  his 
services  subsequent  to  that  time,  and  for  damages  on  account  of 
being  unlawfully  deprived  of  his  liberty,  but  could  also  subject  their 
former  owners  to  criminal  prosecutions  for  false  imprisonment.  Not 
believing  that  such  an  effect  should  be,  or  was  intended  to  be  given 
to  the  Proclamation,  I  must  sustain  the  demurrer  of  the  plaintiff'." 
Connett  v.  Williams,  United  States  Circuit  Court  (Texas),  Jan.  T., 
186G,  by  Judge  Thomas  H.  DuvaL  There  have  been  State  decis 
ions  to  the  effect  that  contracts  made  for  the  purchase  of  negroes, 
even  before  the  war,  but  which  matured  after  their  emancipation, 
cannot  be  enforced ;  but  the  editor  has  not  preserved  the  news 
paper  reports  of  them.  He  supposes  the  correct  principle  to  be,  as 
stated  by  the  English  bench,  "  Who  owned  the  negroes  when  they 
obtained  their  freedom?"  If  they  were  property  when  sold,  the 
purchaser  must  sustain  the  loss. 

[CONCURRENT  RESOLUTION,  RECEIVED  AT  DEPARTMENT  OP  STATE 
JUNE  16,  1866.] 

JOINT   RESOLUTION    PROPOSING   AN   AMENDMENT    TO 
TflK  CONSTITUTION  OF  THE  UNITED  STATES. 

Who  are  Be  it  resolved  by  the  Senate  and  House  of  Repre- 

SftST*        sentatives  of  the  United  States  of  America  in  Congress 
sulu-8d?        assembled    (two-thirds   of   both  Houses  concurring) 


Art.  XIV.]  RECONSTRUCTION.  279 

That  the  following  article  be  proposed  to  the  legis- 6,  is,  220. 
latures  of  the  several  States  as  an  amendment  to  the 
Constitution  of  the  United  States,  which,  when  ratified 
by  three-fourths  of  said  legislatures,  shall  be  valid  as 
part  of  the  Constitution,  namely: 

ARTICLE  XIV. 

SEC.  1.  All  persons  born  or  naturalized  in  the  United 
States,  and  subject  to  the  jurisdiction  thereof,  are 
citizens  of  the  United  States  and  of  the  State 
wherein  they  reside.  No  State  shall  make  or  enforce 
any  law  which  shall  abridge  the  privileges  or  immuni 
ties  of  citizens  of  the  United  States;  nor  shall  any 
State  deprive  any  person  of  life,  liberty,  or  property,!  / 
without  due  process  of  law,  nor  deny  to  any  person, 
within  its  jurisdiction  the  equal  protection  of  the  laws.! 

SEC.  2.  Representatives  shall  be  apportioned  among  HOW  are 
the    several    States     according     to    their    respective  Svesappor- 
numbers,  counting  the  whole  number  of  persons  in  each  ^St 
State,   excluding   Indians  not  taxed.     But  when  the 
right  to  vote  at  any  election  for  the  choice  of  electors 
for  President  and  Vice-President  of  the  United  States, 
representatives  in  Congress,  the  executive  and  judicial 
officers  of  a  State,  or  the  members  of  the  legislature 
thereof,  is  denied  to  any  of  the  male  inhabitants  of 
such  State,  being  twenty-one  years  of  age,  and  citizens 
of  the  United  States,  or  in  any  way  abridged,  except 
for  participation  in  rebellion  or  other  crime,  the  basis  HOW  is  the 
of  representation  therein  shall  be  reduced  in  the  pro- reduced? 
portion  which  the  number  of  such  male  citizens  shall 
bear  to  the  whole  number  of  male  citizens  twenty-one 
years  of  age  in  such  State. 

SEC.  3.  No   person   shall    be  a   senator    or   repre-  who  are  dis- 
gentative  in  Congress,  or  elector  of  President  and  Vice-  jvom'hoia- 
President,  or  hold  any  office,  civil  or  military,  under ingott 
the  United  States,  or  under  any  State,  who,  having 


280  PUBLIC    DEBT  GUAKANTEED,    275.     [Amendments, 

previously  taken  an  oath,  as  a  member  of  Congress,  or 
as  any  officer  of  the  United  States,  or  as  a  member  of 
any  State  legislature,  or  as  an  executive,  or  judicial 
officer  of  any  State,  to  support  the  Constitution  of  the 
United  States,  shall  have  engaged  in  insurrection  or 
rebellion  against  the  same,  or  given  aid  or  comfort  to 
HOW  re-  the  enemies  thereof.  But  Congress  may,  by  a  vote  of 

stored?  .  .     .         _         .    TT  .    V.      ,  ... 

two-thirds  oi  each  House,  remove  such  disability. 
HOW  is  the       SEC.  4.  The   validity  of    the    public    debt   of   the 

public  debt    __    .  T.-I,          i  -IT  -11 

puaran-  United  States,  authorized  by  law,  including  debts 
incurred  for  payment  of  pensions  and  bounties  for 
services  in  suppressing  insurrection  or  rebellion,  shall 

The  rebel     not  be  questioned.     But  neither  the  United  States  nor 

debt,  how  _.  ..  .  ,. 

repudiated?  any  btate  shall  assume  or  pay  any  debt  or  obliga 
tion  incurred  in  aid  of  insurrection  or  rebellion  against 
the  United  States,  or  any  claim  for  the  loss  or  emanci 
pation  of  any  slave ;  but  all  such  debts,  obligations, 
and  claims  shall  be  held  illegal  and  void. 

SEC.  5.  The  Congress  shall  have  power  to  enforce, 
by  appropriate  legislation,  the  provisions  of  this  article. 

275.  This  amendment  was  never  submitted  to  the  President  for 

236.        his  approval  or  veto.     In  a  message  to  Congress,  he  said,  that  the 

sending  it  to  the  States  was  not  to  be  construed  into  an  approval 

of  its  provisions.     Nevertheless,  it  was  sent  by  the  Secretary  of 

State  to  all  the  States. 

In  a  letter  of  transmission  to  the  editor,  on  the  29th  October, 
1867,  the  Secretary  of  State  remarks:  "I  also  send  an  accurate 
copy  (of  the  fourteenth  amendment)  as  proposed  by  Congress;  but 
as  this  amendment  has  not  yet  been  ratified  by  a  sufficient  number 
of  the  States,  through  their  legislatures,  agreeably  to  the  require 
ments  of  the  Constitution,  it  is  not  deemed  expedient  in  this  case 
to  promulgate  any  official  data  in  relation  thereto." 

Application  was  then  made  to  the  clerk  of  the  House  of  Repre 
sentatives  who  politely  furnished  the  following: — 

Dates  of  the  ratification  of  the  XlVth  constitutional  amendment. 
1866  :  Connecticut,  June  30  ;  New  Hampshire,  July  7  ;  Tennessee, 
July  19  ;  New  Jersey,  September  11 ;  Oregon.  September  19  ;  Ver 
mont,  November  7.  18G7  :  New  York,  January  10;  Ohio,  January 
11  (withdrawn  Jan.  1868);  Nevada,  January  11  and  22;  Illinois, 
January  15;  West  Virginia,  January  1G;  Kansas,  January  18; 
Missouri,  January  2G;  Indiana,  January  29;  Minnesota,  Febru 
ary  1  ;  Rhode  Island,  February  7;  Pennsylvania,  February  1,'3 ; 


Art  XIV.]  RATIFICATION-,    275,    276.  281 

Wisconsin,  February  13  ;  Michigan,  February  15,  Massachusetts, 
March  15  and  20;  Nebraska,  June  15.  Rejected  by  Delaware, 
Maryland,  Kentucky,  Virginia,  North  Carolina,  South  Carolina, 
(ieorgia,  Florida,  Alabama,  Louisiana,  Mississippi,  Arkansas, 
Texas.  Not  acted  :  California,  Iowa. 

Ratified  by  22  States  ;  rejected  by  13  :  not  acted  OH  by  2.  When 
submitted  there  were  36  States  ;  Nebraska  added,  makes  37.  Three- 
fourths  of  all  were  27,  now  28.  If  wo  deduct  the  ten  rebel  States, 
19  would  be  sufficient. 

In  the  case  of  Mississippi  v.  Johnson,  4  Wall.  475,  it  was 
sought  to  enjoin  the  operation  of  these  laws  upon  the  ground  of 
their  unconstitutionality.  The  arguments  are  fully  reported  ;  but 
the  court  limited  the  inquiry  to  the  single  point,  Can  the  President 
be  restrained  by  injunction  from  carrying  into  effect  an  act  of 
Congress  alleged  to  be  unconstitutional?  After  reviewing  Mar- 
bury  v.  Madison,  1  Cr.  137,  and  Kendall  v.  Stockton  &  Stokes, 
12  Pet.  527,  it  was  said  :  "  The  Congress  is  the  legislative  depart- 14, 165. 
ment  of  the  government ;  the  President  is  the  executive  depart-  195. 
ment.  Neither  can  be  restrained  in  its  action  by  the  judicial 
department;  though  the  acts  of  both,  when  performed,  are,  in 
proper  cases,  subject  to  its  cognizance."  Mississippi  v.  Johnson, 
4  Wall.  500.  The  rule  was  denied.  Id.  501. 

There  are  many  persons  whose  opinions  are  entitled  to  respect,         286. 
who  maintain  that  the  ratification  is  complete  without  the  concur 
rence  of  the  non-reconstructed  States.     (See  Farrar's  Const.  §  448, 
note  1.)    If  this  view  be  correct,  then  the  ratification  is  already 
accomplished,  and  the  fourteenth  amendment  stands  as  a  part  of 
the  Constitution.     But  if  it  be  not  correct,  the  editor  doubts  not 
but  the  amendment  will  be  adopted  within  the  present  year,  by 
enough  of  those  ten  States  (unless  prevented  by  civil  war),  to  insure 
its  ratification,  after  the  same  manner  that  the  thirteenth  amend-        274. 
ment  was  ratified.     It  has  therefore  been  printed,  to  prevent  future 
confusion,  in  the  index,  and  stereotyped  pages.     Should  it  never  go 
into  practical  operation,  the  constitutional  student  will  reject  the 
propositions  which  it  embraces.      It  has  been  seen  that  the  Secre 
tary  of  State  discards  the  notion  that  the  amendment  is  yet  com 
plete.     It  is  also  painfully  true,  that  in  a  message  to  the  Senate, 
and  in  other  public  declarations,  the  President  questioned  the  ex-        236. 
pediency,  if  he  did  not  deny  the  power  of  Congress  to  submit  this 
amendment,  while  a  portion  of  the  States  were  not  represented 
and  allowed  to  vote  upon  such  submission.     But  this  argument        27i. 
would  also  go  to  the  thirteenth  amendment,  unless,  indeed,  there  117, 113. 
be  a  distinction  between  the  rights  of  States  of  the  Union,  when 
engaged  in  actual  war  against  the  United  States,  and  after  that         46. 
resistance  has  been  conquered  and  such  rebellious  peoples  have 
sent  back  their  representatives  to  Congress. 

276.  It  has  been  seen  that  the  President  imposed  upon  these 
same  States  the  condition  of  adopting  the  thirteenth  amendment, 
and  thus  forever  destroyed  slavery  within  the  jurisdiction  of  the        274 
United  States.     This  was  claimed  in  virtue  of  the  war  power,  and 
for  the  general  welfare  of  the  whole  Union.      The  thing  has  been  u,  79,  80. 
done,  and  the  complete  change  of  organic  law  has  gone  into  history. 


282 


REBEL  STATES,   276.        [Am'ts,  Art.  XIY., 


236. 


Act  of 
March  2, 
1867. 
Preamble  ? 


How  are 
certain  rebel 


The  country  accepted  the  act,  and  there  were  those  who  thought 
this  enough  But  Congress,  adopting  the  view  that  further 
amendments  were  necessary ;  and,  either  holding  that  the  ratifi 
cation  of  three-fourths  of  all  the  States  was  required  ;  or  else 
wishing  to  test  the  fact,  that  these  States  so  lately  in  rebellion, 
had  given  evidence  of  loyalty  and  submission,  and  claiming  for 
Congress  the  power  to  impose  further  conditions  than  the  Presi 
dent  had  demanded,  with  a  view  to  secure  liberty  and  equal 
political  rights  to  all,  and  to  compel  those  States  to  ratify  the 
amendment,  enacted  the  following  series  of  laws : — 

"  An  Act  to  provide  for  the  more  efficient  Government  of  the  Rebel 
States. 

"  WHEREAS  no  legal  State  governments  or  adequate  protection  for 
life  or  property  now  exists  in  the  rebel  States  of  Virginia,  North 
Carolina,  South  Carolina,  Georgia,  Mississippi,  Alabama,  Louisi 
ana,  Florida,  Texas,  and  Arkansas;  and  whereas  it  is  necessary 
that  peace  and  good  order  should  be  enforced  in  said  States,  until 
loyal  and  republican  State  governments  can  be  legally  established ; 
therefore, 

Be  it  enacted,  dec.,  That  said  rebel  States  shall  be  divided  into 


States  to  be  military  districts,  and  made  subject  to  the  military  authority  of 
divided,  the  United  States  as  hereinafter  pre  cribed,  and  for  that  purpose 
cd  to  Virginia  shall  constitute  the  first  district;  North  Carolina  and 

military  South  Carolina,  the  second  district;  Georgia,  Alabama,  and 
authority?  Florida,  the  third  district;  Mississippi  and  Arkansas,  the  fourth 
Is  the  district  ;  and  Louisiana  and  Texas,  the  fifth  district. 

to  asS^an  "  2'  Ifc  siia11  be  the  dllt7  °f  tll<3  rresident  to  assign  to  the  COm- 
army  officer  mand  of  each  of  said  districts,  an  officer  of  the  army,  not  below  the 
to  command  rank  of  brigadier-general,  and  to  detail  a  sufficient  military  force 
tri'ct  ''iS~  to  ena^e  sucn  °fficer  t°  perform  his  duties,  arid  enforce  his 
Military  authority  within  the  district  to  which  he  is  assigned. 
force  to  he  "  3.  It  shall  be  the  duty  of  each  officer  assigned  as  aforesaid,  to 
What  protect  all  persons  in  their  rights  of  person  and  property,  to  sup- 

the  dtutai  Press  insurrection,  disorder,  and  violence,  and  to  punish,  or  cause  to 
of  command-  be  punished,  all  disturbers  of  the  public  peace  and  criminals;  and 
ers  of  to  this  end  he  may  allow  local  civil  tribunals  to  take  jurisdiction 

ot'an(1  to  trv  offenders,  or,  when  in  his  judgment  it  may  be  neces- 
sary  for  the  trial  of  offenders,  he  shall  have  power  to  organize 
military  commissions  or  tribunals  for  that  purpose,  and  all  inter- 
feronce  under  color  of  State  authority  with  the  exercise  of  military 
authority  under  this  act,  shall  be  null  and  void. 

"4.  All  persons  put  under  military  arrest  by  virtue  of  this  act 
shall  be  tried  without  unnecessary  delay,  and  no  cruel  or  unusual 
punishment  shall  be  inflicted,  and  no  sentence  of  any  military  com 
mission  or  tribunal  hereby  authorized,  affecting  the  life  or  liberty 
of  any  person,  shall  be  executed  until  it  is  approved  by  the  officer 
in  command  of  the  district,  and  the  laws  and  regulations  for  the 
government  of  the  army  shall  not  be  affected  by  this  act,  except  in 
sentences  of  so  far  ag  they  conflict  with  its  provisions  :  Provided,  That  no  sen- 
tri'bun'us  to  tence  of  death  under  the  provisions  of  this  act  shall  be  carried  icto 
beexecuted?  effect  without  the  approval  of  the  President. 


trilmnals? 
State  inter- 


Persons 
under 
military 
arrest  to  be 
speedily 
tried  ? 
What  rule 
of  punish 
ment? 
How  are 


Sees.  1-5.]  TEEMS  OF  ADMISSION,   286.  283 

"  5.  When  the  people  of  any  one  of  said  rebel  States  shall  have  Upon  what 
formed  a  constitution  of  government  in  conformity  with  the  Con-  conditions 
stitution  of  the  United  States  in  all  respects,  framed  by  a  conven-  Entitled  te 
tion  of  delegates  elected  by  the  male  citizens  of  said  State,  twenty-  representa- 
one  years  old  and  upward,  of  whatever  race,  color,  or  previous  con-  *j<m  j"  s  , 
dition,  who  have  been  resident  in  said  State  for  one  year  previous  Delegates  to 
to  the  day  of  such  election,  except  such  as  may  be  disfranchised  conventions, 
for  participation  in  the  rebellion,  or  for  felony  at  common  law,  and  by  whom 
when  such  Constitution   shall  provide  that  the  elective  franchise  VSt  is  the 
shall  be  enjoyed  by  all  such  persons  as  have  the  qualifications  elective 
herein    stated   for   electors   of  delegates,    and   when  such    Con-  franchise? 
stitution  shall  be  ratified    by  a  majority  of  the    persons   voting 
on    the    question  of  ratification   who    are    qualified    as    electors 
for    delegates,   and    when    such   Constitution   shall    have    been 
submitted  to  Congress  for  examination  and  approval,  and  Congress 
shall  have  approved  the  same,  and  when  said  State,  by  a  vote  of  The  State  to 
its  legislature  elected  under  said  Constitution,  shall  have  adopted  adopt  the 
the  amendment  to  the  Constitution  of  the  United  States,  proposed  J^SJsCoa- 
by  the  Thirty-ninth  Congress,  and  known  as  article  fourteen,  and  stitution  ? 
when  said  article  shall  have  become  a  part  of  the  Constitution 
of  the  United  States,  said  State  shall  be  declared  entitled  to  repre 
sentation  in  Congress,  and  senators  and  representatives  shall  be 
admitted  therefrom  on  their  taking  the  oath  prescribed  by  law,  and  What  quali- 
then  and  thereafter  the  preceding  sections  of  this  act  shall  be  in-  fictions  of 
-operative  in  said  State  :  Provided,  That  no  person  excluded  from  ^prJsenta- 
the  privilege  of  holding  office  by  said  proposed  amendment  to  the  tives  ? 
Constitution  of  the  United  States,  shall  be  eligible  to  election  as  a 
member  of  the  convention  to  frame  a  Constitution  for  any  of  said 
rebel  States,  nor  shall  any  such  person  vote  for  members  of  such 
convention. 

"6.  Until  the  people  of  said  rebel  States  shall  be  by  law  admit-  What  are 
ted  to  representation  in  the  Congress  of  the  United  States,  any  civil the  civil 
governments  which  may  exist  therein  shall  be  deemed  provisional  |^ntrsn0f 
only,  and  in  all  respects  subject  to  the  paramount  authority  of  the  such  States? 
United  States  at  any  time  to  abolish,  modify,  control,  or  supersede  Who  may 
the  same  ;  and  in  all  elections  to  any  office  under  such  provisional  JjJettanif 
governments  all  persons  shall  be  entitled  to  vote,  and  none  others, 
who  are  entitled  to  vote,  under  the  provisions  of  the  fifth  section 
of  this  act ;  and  no  person  shah1  be  eligible  to  any  office  under  any 
such   provisional    governments  who  would  be    disqualified  from 
holding  office  under  the  provisions  of  the   third  article  of  said 
constitutional  amendment." 

This  act  was  passed  over  the  President's  veto,  March  2,  1867. 

"  Ax  ACT  supplementary  to  an  act  entitled  'An  act  to  provide  for  Act  of 
the  more  efficient  government  of  the  rebel  States,'  passed  March  March  23, 
second,    eighteen   hundred   and    sixty-seven,    and   to    facilitate 
restoration. 

"  Be  it  enacted,  <fce.,  That  before  the  first  day  of  September,  eighteen 
hundred  and  sixty-seven,  the  commanding  general  in  each  district 
defined  by  an  act  entitled  'An  act  to  provide  for  the  more  efficient  Wh.°  are 
government  of  the   rebel  States,'  passed  March  second,  eighteen  bTreStered 
hundred  and  sixty-seven,  shall  cause  a  registration  to  be  made  of  as  voters? 


284 


SUPPLEMENTAEY  ACT,    276.  [Am'ts,  Art.  XIY., 


What  oath 
of  the 
voters  ? 


242. 


"When  and 
by  whose 


the  male  citizens  of  the  United  States,  twenty-one  years  of  age  and 
upwards,  resident  in  each  county  or  parish  in  the  State  or  States 
included  in  his  district,  which  registration  shall  include  only  those 
persons  who  are  qualified  to  vote  for  delegates  by  the  act  aforesaid, 
and  who  shall  have  taken  and  subscribed  the  following  oath  or 

affirmation :   '  I, ,  do  solemnly  swear  (or  affirm),  in  the  presence 

of  Almighty  God,  that  I  am  a  citizen  of  the  State  of ;  that  I  have 

resided  in  said  State  for months  next  preceding  this  day,  and 

now  reside  in  the  county  of  ,  or  the  parish  of  ,  in  said 

State  (as  the  case  may  be) ;  that  I  am  twenty-one  years  old ;  that 
I  have  not  been  disfranchised  for  participation  in  any  rebellion  or 
civil  war  against  the  United  States,  nor  for  felony  committed  against 
the  laws  of  any  State  or  of  the  United  States;  that  I  have  never 
been  a  member  of  any  State  legislature,  nor  held  any  executive  or 
judicial  office  in  any  State  and  afterward  engaged  in  insurrection  or 
rebellion  against  the  United  States,  or  given  aid  or  comfort  to  the 
enemies  thereof;  that  I  have  never  taken  an  oath  as  a  member  of 
Congress  of  the  United  States,  or  as  an  officer  of  the  United  States, 
or  as  a  member  of  any  State  legislature,  or  as  an  executive  or  judi 
cial  officer  of  any  State,  to  support  the  Constitution  of  the  United 
States,  and  afterward  engaged  in  insurrection  or  rebellion  against 
the  United  States,  or  given  aid  or  comfort  to  the  enemies  thereof; 
that  I  will  faithfully  support  the  Constitution  and  obey  the  laws  of 
the  United  States,  and  will,  to  the  best  of  my  ability,  encourage 
others  so  to  do,  so  help  me  God;'  which  oath  or  affirmation  may  bo 
administered  by  any  registering  officer. 

"  2.  After  the  completion  of  the  registration  hereby  provided 
for  in  any  State,  at  such  time  and  places  therein  as  the  commanding 


election  to*5  genera^  snaH  appoint  and  direct,  of  which  at  least  thirty  days'  pub- 
be  held  ?  h'c  notice  shall  be  given,  an  election  shall  be  held  of  [for]  delegates 
to  a  convention  for  the  purpose  of  establishing  a  Constitution  and 
civil  government  for  such  State  loyal  to  the  Union,  said  convention 
in  each  State,  except  Virginia,  to  consist  of  the  same  number  of 
members  as  the  most  numerous  branch  of  the  State  legislature  of 
such  State  in  the  year  eighteen  hundred  and  sixty,  to  bo  appor 
tioned  among  the  several  districts,  counties,  or  parishes  of  such 
State  by  the  commanding  general,  giving  to  each  representation  in 
the  ratio  of  voters  registered  as  aforesaid  as  nearly  as  may  be.  The 
convention  in  Virginia  shall  consist  of  the  same  number  of  mem 
bers  as  represented  the  territory  now  constituting  Virginia  in  the 
most  numerous  branch  of  the  legislature  of  said  State  in  the  year 
eighteen  hundred  and  sixty,  to  be  apportioned  as  aforesaid. 
How  to  vote  "3.  At  said  election  the  registered  voters  of  each  State  shall 
for  or  vote  for  or  against  a  convention  to  form  a  Constitution  therefor  uu- 

^er  t^s  ac^  r-^nose  voting  in  favor  of  such  a  convention  shall  have 
written  or  printed  on  the  ballots  by  which  they  vote  for  delegates,  as 
aforesaid,  the  words  '  For  a  convention  ;'  and  those  voting  against 
such  a  convention  shall  have  written  or  printed  on  such  ballots  the 
words  '  Against  a  convention.'  The  persons  appointed  to  superintend 
said  election,  and  to  make  return  of  the  votes  given  ther-at,  as 
herein  provided,  shall  count  and  make  return  of  the  votes  <?iven  for 
and  against  a  convention  ;  and  the  commanding  genera]  lo  \vhom 
the  same  shall  have  been  returned  shall  ascertain  and  d  olare  the 


couventhm  ? 


Sees.  1-5.]       BOARDS  OF  REGISTRATION,    276. 

total  vote  in  each  State  for  and  against  a  convention.  If  a  majority 
of  the  votes  given  on  that  question  shall  be  for  a  convention,  then 
such  convention  shall  be  held  as  hereinafter  provided;  but  if  a  ma 
jority  of  said  votes  shall  be  against  a  convention,  then  no  such  con 
vention  shall  be  held  under  this  act:  Provided,  That  such  convention 
shall  not  be  held  unless  a  majority  of  all  such  registered  voters  shall 
have  voted  on  the  question  of  holding  such  convention. 

"  4.  The  commanding  general  of  each  district  shall  appoint  as  How  are 
many  boards  of  registration  as  may  be  necessary,  consisting  of  boards  of 
three  loyal  officers  or  persons,  to  make  and  complete  the  regis-  to^an-101* 
tration,  superintend  the  election,  and  make  return  to  him  of  the  pointed? 
votes,  list  of  voters,  and  of  the  persons  elected  as  delegates  by  a 
plurality  of  the  votes  cast  at  said  election  ;  and  upon  receiving  said 
returns  he  shall  open  the  same,  ascertain  the  persons  elected  as 
delegates,  according  to  the  returns  of  the  officers  who  conducted 
said  election,  and  make  proclamation  thereof;  and  if  a  majority  of 
the  votes  given  on  that  question  shall  be  for  a  convention,  the  com 
manding  general,  within  sixty  days  from  the  date  of  election,  shall 
notify  the  delegates  to  assemble  in  convention,  at  a  time  and  place 
to  be  mentioned  in  the  notification,  and  said  convention,  when 
organized,  shall  proceed  to  frame  a  Constitution  and  civil  govern 
ment  according  to  the  provisions  of  this  act,  and  the  act  to  wThich 
it  is  supplementary  ;  and  when  the  same  shall  have  been  so  framed, 
said  Constitution  shall  be  submitted  by  the  convention  for  ratification 
to  the  persons  registered  under  the  provisions  of  this  act  at  an 
election  to  be  conducted  by  the  officers  or  persons  appointed,  or  to 
be  appointed,  by  the  commanding  general,  as  hereinbefore  pro 
vided,  and  to  be  held  after  the  expiration  of  thirty  days  from  the 
date  of  notice  thereof,  to  be  given  by  said  convention;  and  the 
returns  thereof  shall  be  made  to  the  commanding  general  of  the 
district. 

"  5.  If,  according  to  said  returns,  the  Constitution  shall  be  ratified  What  to  be 
by  a  majority  of  the  votes  o"  *he  registered  electors  qualified  as  done^ 
herein  specified,  cast  at  said  election,  at  least  one-half  of  all  the  ^ 
registered  voters  voting  upon  the  question  of  such  ratification,  the 
president  of  the  convention  shall  transmit  a  copy  of  the  same,  duly 
certified,  to  the  President  of  the  United  States,  who  shall  forthwith 
transmit  the  same  to  Congress,  if  then  in  session,  and  if  not  in 
session,  then  immediately  upon  its  next  assembling;  and  if  it  shall 
moreover  appear  to  Congress  that  the  election  was  one  at  which  all 
the  registered  and  qualified  electors  in  the  State  had  an  opportunity 
to  vote  freely  and  without  restraint,  fear,  or  the  influence  of  fraud, 
and  if  the  Congress  shall  be  satisfied  that  such  Constitution  meets 
the  approval  of  a  majority  of  all  the  qualified  electors  in  the  State, 
and  if  the  said  Constitution  shall  be  declared  by  Congress  to  be  in 
conformity  with  the  provisions  of  the  act  to  which  this  is  supple 
mentary,  and  the  other  provisions  of  said  act  shall  have  been  com 
plied  with,  and  the  said  Constitution  shall  be  approved  by  Congress, 
the  State  shall  be  declared  entitled  to  representation,  and  senators 
and  representatives  shall  be  admitted  therefrom  as  therein  provided. 

"  6.  All  elections  in  the  States  mentioned  in  the  said   '  Act  to  the\otes  to 
provide  for  the  more  efficient  government  of  the  rebel  States.'  shall,  be  cast? 


286 


2D  SUPPLEMENTARY  ACT,   276.       [Art.  XIV., 


during  the  operation  of  said  act,  be  by  ballot  ;    and  all  officers 
making  the  said  registration  of  voters  and  conducting  said  elections 
shall,  before  entering  upon  the  discharge  of  their  duties,  take  and 
subscribe  the  oath  prescribed  by  the  act  approved  July  second, 
eighteen  hundred  and  sixty-two,  entitled  'An  act  to  prescribe  an 
What  is  the  oath  of  office:'  Provided,  That  if  any  person  shall  knowingly  arid 
penalty  of     falsely  take  and   subscribe  any  oath  in   this  act  prescribed,  such 
Person  so  offending,  and  being  thereof  duly  convicted,  shall  be  sub 
ject  to  the  pains,  penalties,  and  disabilities  which  by  law  are  pro 
vided  for  the  punishment  of  the  crime  of  willful  and  corrupt  perjury. 
"  7.  All  expenses  incurred  by  the  several  commanding  generals, 
Or  by  virtue  of  any  orders  issued,  or  appointments  made,  by  them, 
under  or  by  virtue  of  this  act,  shall  be  paid  out  of  any  moneys  in 
the  treasury  not  otherwise  appropriated. 

"  8.  The  convention  for  each  State  shall  prescribe  the  fees,  salary. 
and  compensation  to  be  paid  to  all  delegates  and  other  officers  and 
agents  herein  authorized  or  necessary  to  carry  into  effect  the  pur 
poses  of  this  act  not  herein  otherwise  provided  for  and  shall  pro 
vide  for  the  levy  and  collection  of  such  taxes  on  the  property  in 
such  State  as  may  be  necessary  to  pay  the  some. 

"9.  The  wrord  'article,'  in  the  sixth  section  of  the  act  to  which 
this  is  supplementary,  shall  be  construed  to  mean  '  section.'  " 
Passed  over  the  President's  veto,  March  23,  18G7. 


How  are 
the  expen- 

mid'?   6 

How  are 

tin-  Claries 

paid?0 


Act  of  July 
1?,  1867. 


"What  nre 


the  States 
declared 
to  be? 


"AN  ACT  supplementary  to  an  act  entitled  'An  act  to  provide  for 
the  more  efficient  government  cf  the  rebel  States,'  passed  on 
the  second  day  of  March,  eighteen  hundred  and  sixty-seven,  and 
the  act  supplementary  thereto,  passed  on  the  twenty-third  day 
of  March,  eighteen  hundred  and  sixty-seven. 

"  Be  it  enacted,  <fcc.,  That  it  is  hereby  declared  to  have  been  the 
true  intent  and  meaning  of  the  act  of  the  second  day  of  March, 
°ne  thousand  eight  hundred  and  sixty-seven,  entitled  'An  act  to 
provide  for  the  more  efficient  government  of  the  rebel  States,' 
an(j  of  tjjg  act  supplementary  thereto,  passed  on  the  twenty-third 
day  of  March,  in  the  year  one  thousand  eight  hundred  and  sixty- 
seven,  that  the  governments  then  existing  in  the  rebel  States  of 
Virginia,  North  Carolina,  South  Carolina,  Georgia,  Mississippi,  Ala 
bama,  Louisiana,  Florida,  Texas,  and  Arkansas  were  not  legal 
State  governments  ;  and  that  thereafter  said  governments,  if  con 
tinued,  were  to  be  continued  subject  in  all  respects  to  the  military 
commanders  of  the  respective  districts,  and  to  the  paramount  au 
thority  of  Congress. 

What  is  the  "  2.  The  commander  of  any  district  named  in  said  act  shall 
power  of  have  power,  subject  to  the  disapproval  of  the  general  of  the 
army  of  the  United  States,  and  to  have  effect  till  disapproved, 
whenever  in  the  opinion  of  such  commander  the  proper  adminis 
tration  of  said  act  shall  require  it,  to  suspend  or  remove  from 
office,  or  from  the  performance  of  official  duties  and  the  exercise 
of  official  powers,  cny  officer  or  person  holding  or  exercising,  or 
professing  to  hold  or  exercise,  any  civil  or  military  office  or  duty 
in  such  district,  under  any  power,  election,  appointment  or  authori 
ty  derived  from,  or  granted  by,  or  claimed  under,  any  so-called 


removal? 


Sees.  1-5.]  REGISTRATION,    276.  287 

State  or  the  government  thereof,  or  any  municipal  or  other  division 

thereof,  and  upon  such  suspension  or  removal,  such  commander.  % 

subject  to  the  disapproval  of  the  general  as  aforesaid,  shall  have 

power  to  provide  from  time  to  time  for  the   performance  of  the 

said  duties  of  such  officer  or  person  so  suspended  or  removed,  by 

the  detail  of  some  competent  officer  or  soldier  of  the  army,  or  by 

the  appointment  of  some  other  person,  to  perform  the  same,  and 

to  till  vacancies  occasioned  by  death,  resignation,  or  otherwise. 

"  3.  The  general  of  the  army  of  the  United  States  shall  be  in-  what  are 
vested  with  all  the  pov.rors  of  suspension   removal,  appointment,  the  powers 
and  detail  granted  in  the  preceding  section  to  district  commanders.  Q^J^  as 

"  4.  The  acts  of  the  officers  of  the  army  already  done  in  remor-  to  removals  ? 
ing  in  said  districts  persons  exercising  the  functions  of  civil  offi 
cers,  and  appointing  others  in  their  stead,  are  hereby  confirmed: 
Provided,  That  any  person  heretofore  or  hereafter  appointed  by 
any  district  commander  to  exercise  the  functions  of  any  civil  office, 
may  be  removed  either  by  the  military  officer  in  command  of  the 
district,  or  by  the  general  of  the  army.  And  it  shall  be  the  duty 
of  such  commander  to  remove  from  office  as  aforesaid  all  persons 
who  are  disloyal  to  the  government  of  the  United  States,  or  who 
use  their  official  influence  in  any  manner  to  hinder,  delay,  prevent, 
or  obstruct  the  due  and  proper  administration  of  this  act  and  the 
acts  to  which  it  is  supplementary. 

"5.  The  boards  of  registration  provided  for  in  the  act  entitled  "What  nre 
'  An  act  supplementary  to  an  act  entitled  :'  An  act  to  provide  for  the  duties  of 
the  more  efficient  government  of  the  rebel  States,"  passed  March  registration? 
two,  eighteen  hundred  and  sixty-seven,  arid  to  facilitate  restora-  " 
tion,'  passed  March  twenty-three,  eighteen  hundred  and  sixty- 
seven,  shall  have  power,  and  it  shall  be  their  duty,  before  allow 
ing  the  registration  of  any  person,  to  ascertain,  upon  such  facts 
or  information  as  they  can  obtain,  whether  such  person  is  entitled 
to  be  registered  under  said  act;  and  the  oath  required  by  said  act 
shall  not  be  conclusive  on  such  question,  and  no  person  shall  be 
registered  unless  such  board  shall  decide  that  he  is  entitled  thereto ; 
and  such  board  shall  also  have  power  to  examine,  under  oath  (to 
be  administered  by  any  member  of  such  board),  any  one  touching 
the  qualification  of  any  person  claiming  registration  ;  but  in  every 
case  of  refusal  by  the  board  to  register  an  applicant,  and  in  every 
case  of  striking  his  name  from  the  list  as  hereinafter  provided,  the 
board  shall  make  a  note  or  memorandum,  which  shall  be  returned 
with  the  registration  list  to  the  commanding  general  of  the  district 
setting  forth  the  grounds  of  such  refusal  or  such  striking  from  the 
list:  Provided,  That  no  person  shall  be  disqualified  as  member  of 
any  board  of  registration  by  reason  of  race  or  color. 

"  6.  The  true  intent  and  meaning  of  the  oath  prescribed  in  said  What  is  the 
supplementary  act  is  (among  other  things),  that  no  person  who  has  extent  of  the 
been  a  member  of  the  legislature  of  any  State,  or  who  has  held  Jj^J1"1 1 
any  executive  or  judicial  office  in  any  State,  whether  he  has  taken 
an  oath  to  support  the   Constitution  of  the  United  States  or  not, 
and  whether  he  was  holding  such  office  at  the  commencement  of 
the  rebellion,  or  had  held  it  before,  and  who  has  afterwards  en 
gaged  in  insurrection  or  rebellion  against  the  United  States,   or 


288  REGISTRATION,  276,  277.  [Art.  XIV., 

given  aid  or  comfort  to  the  enemies  thereof,  is  entitled  to  be  regia- 
,  tered  or  to  vote ;  and  the  words  '  executive  or  judicial  office  in 

any  State '  in  said  oath  mentioned  shall  be  construed  to  include  all 
civil  offices  created  by  law  for  the  administration  of  any  general 
law  of  a  State,  or  for  the  administration  of  justice. 

To  what  "  7.  The  time  for  completing  the  original  registration  provided  for 

time  is  the  in  said  act  may,  in  the  discretion  of  the  commander  of  any  district, 
extended?11  be  extended  to  the  first  day  of  October,  eighteen  hundred  and 
sixty-seven  ;  and  the  boards  of  registration  shall  have  power,  and 
it  shall  be  their  duty,  commencing  fourteen  days  prior  to  any  elec 
tion  under  said  act,  and  upon  reasonable  public  notice  of  the  time 
and  place  thereof,  to  revise,  for  a  period  of  five  days,  the  registra 
tion  lists,  and  upon  being  satisfied  that  any  person  not  entitled 
thereto  has  been  registered,  to  strike  the  name  of  such  person 
from  the  list,  and  such  person  shall  not  be  allowed  to  vote.  And 
such  board  shall  also,  during  the  same  period,  add  to  such  registry 
the  names  of  all  persons  who  at  that  same  time  possess  the  qualifi 
cations  required  by  said  act  who  have  not  been  already  registered ; 
and  no  person  shall,  at  any  time,  be  entitled  to  be  registered,  or  to 
vote,  by  reason  of  any  executive  pardon  or  amnesty,  for  any  act  or 
thing  which,  without  such  pardon  or  amnesty,  would  disqualify 
him  from  registration  or  voting. 

What  are  "  8.  Section  four  of  said  last-named  act  shall  be  construed  to 

the  P°wera  authorize  the  commanding  general  named  therein,  whenever  he 
command-  shall  deem  it  needful,  to  remove  any  member  of  a  board  of  regis- 
ing  general?  tration,  and  to  appoint  another  in  his  stead,  and  to  fill  any  vacancy 

in  such  board. 

"What  oath  is  "  9.  All  members  of  said  boards  of  registration  and  all  persons 
th^'b^d0?  ^erea^er  elected  or  appointed  to  office  in  said  military  districts, 
under  any  so-called  State  or  municipal  authority,  or  by  detail  or 
appointment  of  the  district  commanders,  shall  be  required  to  take 
and  to  subscribe  the  oath  of  office  prescribed  by  law  for  officers  of 
the  United  States. 

By  whose  "  10.  No  district  commander  or  member  of  the  board  of  registra- 
arelhe1*  **on'  or  an^  °^  ^e  on^cers  or  appointees  acting  under  them,  shall 
district  be  bound  in  his  action  by  any  opinion  of  any  civil  officer  of  the 
commanders  United  States. 

bound?  t<  11    AH  the  provisions  of  this  act.  and  of  the  acts  to  which  this 

is  supplementary,  shall  be  construed  liberally  to  the  end  that  all 
the  intents  thereof  may  be  fully  and  perfectly  carried  out." 
Passed  over  the  President's  veto.  19th  July,  1867. 

"JoiNT  RESOLUTION  to  carry  into  effect  the  several  acts  providing 
for  the  more  efficient  government  of  the  rebel  States. 

"  Be  it  resolved,  &c.,  That,  for  the  purpose  of  carrying  into  effect 
the  above  named  acts,  there  be  appropriated,  out  of  any  money  in 
the  treasury  not  otherwise  appropriated,  the  sum  of  one  million 
dollars." 

Passed  over  the  President's  veto,  19th  July,  1867. 

What  meant  277.  It  will  be  seen  that  the  second  section  of  the  fourteenth 
the  second  amendment  only  contemplated  the  rejection  from  the  basis  of  repre- 
thetarae<nd-  sentation  of  the  "numbers,"  whose  male  representative  men  should 
ment?  "  be  denied  the  elective  franchise.  This  applied  especially  to  the  freo 


Sees.  1-5.]          REGISTERED  VOTERS,    277,    278.  289 

persons  of  color.      Upon  the  estimate  of  four  and   a  half  mil-  21,  23. 
lions  of  those,  very  few  of  whom  are  allowed  to  vote,  unless  the 
rule  of  suffrage  should  be  changed,  nearly  one-eighth  of  the  whole 
representation  would  have  to  be   deducted.     Nearly  all  of  this 
would,  in  fact,  fall  upon  the  late  slave  States,  and  the  greater  part 
upon  the  remaining  ten  rebel  States.     The  reconstruction  acts  ad-  What  Is  the 
vance  one  step  further.     They  still  recognize  the  principle  that  the  eff£ct  of 
States  may  determine  for  themselves  who  of  their  inhabitants  may  ^  t]™go 
vote ;  but,  as  in  the   case  of  Nebraska,  it  is  imposed  "  as  a  funda-  negroes? 
mental  condition  of  admission  "  that  these  States  shall  make  no         H 
distinction,  as  to  the  right  of  suffrage,  on  account  of  color.     While, 
then,  it  was  intended  to  enforce  the  adoption  of  the  constitutional 
amendment,  if  the  law  imposed  the   burden  of  negro  suffrage,  it 
also  secured  to  the  unwilling  whites  the  benefit  of  the  increased 
representation  which  would  have  been  lost  without  this  principle. 
While  the  means  adopted  have  been  denounced  as  onerous,  and  the        275. 
executive  and  judicial  departments  of  the  government  have  been 
appealed  to  to  arrest  them,  the  candid  historian  will  have  to  record, 
that  the  object  of  this  legislation  has  been  to  secure  the  fourteenth 
amendment  to  the  Constitution.     And,  viewed  as  a  revolution  in 
organic  law,  superinduced  by  the  mighty  events  which   preceded, 
the  friends  and  the  opponents  of  the  measure  will  have  to  be  judged,  By  what 
as  they  are  being  judged  in  regard  to  the  thirteenth  amendment,  ™Ie  T111, 
by  the  question  of  whether  it  was   right,  expedient  and  wise  thus  Jnd  oppo- 
to  secure  the  fruits  of  the  victory  which  prevented  the  destruction  nents  have 
of  the  Union  ?     If  the  end  shall  be  approved,  the  severities  of  the  t°  be 
war  and  the  great  loss  of  property,  in  the  one  case,  and  the  com--'udsed? 
plaints  of  the  unfortunate  men,  who  fought  against  a  beneficent        275. 
government,  in  the  other,  will  be  forgotten. 

278.  Under  these  laws  the  voters  registered  have  been  as  fol-  Compare  the 

black  and 
white  vote? 
Whites.  Blacks.  Total. 

Alabama 72,746  93,543  166,289 

Arkansas 43,170  23,146  66,316 

Florida 11,151  15,541  26,692 

Georgia 96,262  95,973  192,235 

Louisiana 45,169  83,249  128,418 

Mississippi 47,434  62,091  109,525 

North  Carolina 103,060  71,657  174,717 

South  Carolina 46,676  80,714  127,390 

Texas 56,666  47,430  104,096 

Virginia 120,101  105,832  225,933 

Aggregates 642,435          679,176          1,321,611 

—  TJie,  World  Almanac,  pp.  102-106. 

In  1860,  the  white  vote  of  the  same  States  was  about  652,000. 
But  it  is  estimated  that  300,000,  who  would  have  been  voters,  lost 
their  lives  by  the  civil  war.  Probably  100,000  were  either  exclu 
ded,  under  the  acts  of  Congress,  or  else  failed  to  register.  And 
yet  there  seems  to  be  a  falling  off  of  less  than  10,000.  The  vote 
of  West  Virginia  is  also  to  be  deducted  from  the  vote  of  Virginia. 
The  conventions  have  been  carried  and  delegates  elected  in  all  the 


290  THE   GREAT  ISSUES,    278-281.  [Art.  XIV., 

States  except  Texas.  In  that  State  an  election  has  been  ordered  to 
take  place  on  the  10th,  llth,  12th,  13th  and  14th  of  February,  18G8. 
IT.  The  conventions  of  Alabama,  Virginia,  North  Carolina,  Georgia, 
Florida,  and  Arkansas  have  adopted  the  principle  of  suffrage  for 
whites  and  blacks  alike. 

The  new  Constitutions  will  be  submitted  to  the  people  for  their 
ratification;  and  a  bill  has  passed  the  House  of  Representatives, 
and  may  become  a  law,  to  secure  the  ratification  by  a  simple  ma 
jority  of  the  votes  cast  ;  and  to  elect  members  of  Congress  at  the 
same  time.  Should  the  Constitutions  be  ratified,  and  State  officers 
elected  under  them,  the  contest  may  possibly  then  arise  between 
the  new  governments  thus  organized  and  the  governments  intend 
ed  to  be  superseded.  But  whatever  form  the  controversy  may 
assume,  no  candid  mind  should  ever  lose  sight  of  the  fact,  that  the 
great  issue  is,  Shall  the  fourteenth  amendment  be  ratified  by  those 
States  not  now  allowed  representation  or  not? 

What  do  the  279.  In  view  of  so  important  an  issue,  it  may  be  well  for  every 
amend-  reader  to  consider  carefully  what  this  amendment  proposes  or  has 
ESS?*1*"  done?  This  may  be  answered  thus  :— 

The  first?  SEC.  1.  Defines  national  citizenship,  and  thus  makes  organic 
6,  19,  25,  28,  what  had  already  been  declared  law  by  the  first  section  of  the 

ooj.1^169'  Civil  Rights  Bill.  Paschal's  Annotated  Digest,  Art.  5382.  See 
220-223. 


All  else  in  this  section  has  already  been  guarantied  in  the  second 

and  fourth  sections  of  the  fourth  article;  and  in  the  thirteen  amend- 

220-225,  245-  ments.     The  new  feature  declared  is  that  the  general  principles, 

274-  which  had  been  construed  to  apply  only  to  the  national  government, 

260,  264.        are  thus  imposed  upon  the  States.     Most  of  the  States,  in   gensral 

terms,  had  adopted  the  same  bill  of  rights  in  their  own  constitu 

tions. 

The  second?      2§O.  The  second  section  amends  the  third  clause  of  the  second 

section  of  the  first  article,  so  as  to  make  representation  depend 

21-24,  276.     upon  voters  as  well  as  numbers.     It  thus  more  clearly  defines  who 

of  those  "  persons,"  now  "citizens,"  shall  be  counted  in  the  basis  of 

J7,  18,  220,     representation.     Curtailment  of  representation  will  follow  curtail- 

221-  ment  of  suffrage.     But  the  rights  of  the  States  to  determine  who 

effSrf  thC  of  their  inhabitants  sha11  vote  seems  still  to  be  left  unimpaired. 

curtailment       This  view,  however,  has  been  denied;  and  there  are  those  of 

of  suffrage  ?  great  weight,  who  claim  that  Congress  has  the  power  to  prescribe 

16  1818          an  uru"versal  rule  °f  suffrage  for  all  the  States.  Putting  it  upon  the 

178,  174,  269.  ground  of  a  right  still  retained  by  the  States  and  people,  it  is  not 

probable  that  any  State  would  long  exclude  a  large  class  of  voters 

;';*    "    at  the   expense  of  its  weight  of  representation  in  the  national 

assembly  and  the  electoral  college.     The  prejudice  against  caste 

would  be  overcome  by  the  necessity  for  strength. 

The  third?  2§1.  The  third  section  contains  a  decree  of  exclusion  from 
offiee,  against  all,  everywhere,,  and  for  the  past  as  well  as  future, 

242,  276.  who,  having  previously  taken  an  oath  as  a  member  of  Congress,  or 
as  an  officer  of  the  United  States,  or  as  a  member  of  any  State 
legislature,  or  as  an  executive  or  judicial  officer  of  any  State,  to 

S21,  222,  215.  support  the  Constitution  of  the  United  States,  shall  have  engaged 


Sees.  1-5.]     DISQUALIFICATION-DEBT,    281,    282.  291 

in  insurrection  or  rebellion  against  the  same,  or  given  aid  or  com 
fort  to  ths  enemies  thereof. 

One  of  the  complaints  against  the  reconstruction  laws  has  been,  What  is  the 
that  this  same  disqualification  has  been  extended  to  the  right  to 
vote  upon  all  the  measures  of  reconstruction;  and  that  so  large  a 
class  has  thus  been  excluded  that  "negro  supremacy"  has  been 
established  in  all  those  ten  States.     It  is  no  part  of  this  book  to 
defend  or  denounce  any  policy.     The  truth  is,  that  the  disqualifi-  What  per- 
cation  did  not  and  could  not  reach  any  voter  under  twenty-seven  cen^.® 
years  of  age;  it  could  reach  comparatively  few  below  thirty-five;  p°"8ibiy 
and  in  no  community  is  there  an  alarming  number  above  fifty  years  reach? 
of  age.     Neither  by  statistical  possibility  nor  by  count,  has  it  been 
found  fairly  to  extend  to  one-tenth  part  of  the  population.     Upon 
Attorney-General  Staiibery's  interpretation,  one-twentieth  would        2^7. 
be  much  nearer  the  number.     (Opinions  upon  the  Reconstruction 
Laws,  1867.)    It  does,  however,  reach  a  class;  and  the  disqualifi-        2i2. 
cation  would  extend  to  future  as  well  as  to  past  rebellions,  and  the 
power  of  holding  office,  or  disability  could  only  be  removed  by  a  16-18,  220- 
two-thirds  vote  of  each  house  of  Congress.  2^- 

And  as  the  country  seems  to  have  settled  down  into  the  notion,  ic-19,  35,  46, 
that   the   elective    franchise   and   the  qualification   for  office   are  ya>  169-171. 
powers,    whicti   always    require    something   superadded   to   mere 
citizenship,  the  disqualification  as  an  organic  rule  for  the  future 
becomes  one  of  wisdom  and  sound  policy.     I  say  nothing  of  the 
argument  that  it  is  a  punishment  for  past  offenses  against  the  efficacy  142, 143 
of  executive  pardon.     As  the  number  of  participants  in  past  re 
bellions  will  daily  decrease,  let  us  hope  that  the  love  of  office,  the 
very  strongest  in  the  restless,  ambitious  spirits,  who  always  con-         117 
trol  popular  sentiment,  may  render  it  almost  impossible  that  ever 
the  section  shall  extend  to  others  who  shall  hereafter  engage  in 
insurrection  or  rebellion  against  the  United  States. 

"  STATE  "  in  this  section  would  doubtless  be  interpreted,  as  in 
the  fugitive  clauses,  to  extend  to  the  District  of  Columbia  and  the 
Territories,  and,  indeed,  to  all  who  owed  allegiance  to  the  United  226,  215,  242. 
States,  and  had  held  an  office  within  the  category  of  those  defined. 
And  "PERSON"  would  receive  the  most  comprehensive  definition. 

2§2.  The  fourth  section  declares,  that  "the  validity  of  the  public  What  is  the 
debt  of  the  United  States,  authorized  by  law,  including  debts  in-  four.th 
curred  for  the  p.iyment  of  pensions  and  bounties  for  services  in  se< 
suppressing   insurrection   or   rebellion  shall   not   be  questioned." 
"While  this  has  been  supposed  to  relate   to  the  debt  contracted  in 
the  suppression  of  the  late  rebellion,  it  is,  in  fact,  an  organic  pledge  What  debts 
for  all  debts  contracted  in  the  past  and  for  the  future.     The  debt  is  (^es  it 
not  only  not  to  be  repudiated,  but  "  not  questioned."  Tg^sT* 

While  so  large  a  debt  is  thus  intended  to  be  secured,  the  section  what  debts 
further  stipulates:   "But  neither  the  United  States  nor  any  State  «re  stipulat- 
shall  assume  or  pay  .any  debt  or  obligation  incurred  in  aid  of  insur-  ^  n°^ 
rection  or  rebellion  against  the  United  States,  or  any  claim  for  the 
loss  or  emancipation  of  any  slave ;  but  all  such  debts,  obligations, 
and  claims  shall  be  held  illegal  and  void." 

The  debt  of  the  Confederate  States  could  not  have  been  less  the  probable 
than  two  thousand  millions  of  dollars;  and  the  value  of  the  slaves  amounts? 


292  DEBT— POWER,   282-285.  [Art.  XIV., 

emancipated  exceeded  that  sum.  The  debts  incurrred  by  States, 
counties,  corporations,  and  individuals  in  aid  of  insurrection  or  re 
bellion  against  the  United  States,  probably  amount  to  a  thousand 
millions  more,  to  say  nothing  of  pensions  and  "  bounties  for  ser 
vices,"  if  one  clause  of  the  article  is  to  be  consulted  in  expounding 
the  other.  The  terms  of  reconstruction  prescribed  by  President 
Johnson  required  the  States  to  repudiate  their  war  debts.  This 
has  been  done  to  a  more  or  less  limited  extent  in  the  constitutions 
and  ordinances  of  the  reconstruction  conventions.  But  this  is  only 
78,  82.  for  the  protection  of  the  States.  Every  one  will  judge  for  himself 

of  the  influence  of  such  a  debt,  combined  with  the  danger  of  having 
so  large  a  national  debt  "questioned"   or  repudiated. 

The  problem  of  allowing  the  representations  from  States  with 
drawn  from  Congress  and  incurring  such  enormous  debts  of  their 
own,  while  fighting  the  United  States,  an  equal  voice  in  reference 
to  debts  incurred  by  the  nation  in  conquering  them,  is  one  of  no 
small  difficulty.  Viewed  from  the  stand-point  of  extraneous  in 
fluences  upon  Congress,  no  one  can  now  fully  comprehend  its 
danger.  The  organic  guaranty  is  only  an  additional  security. 

The  fifth?         283.  The  fifth  section  is  little  more  than  a  repetition  of  the 
133.        general  powers  of  legislation.     It  is  precisely  the  same  expressed 
in  the  thirteenth  amendment. 

"The  Congress   shall  have  power  to  enforce,  by  appropriate 
274        legislation,  the  provisions  of  this  article."     The  appropriate  legis 
lation  which  would  arise  under  this  article,  would  be  governed  by 
time  and  circumstances,  just  as  all  tho  other  powers  of  Congress 
have  been. 

Wh;it  is  the     284.  "Whether  this  constitutional  amendment  has  become,  or 
importance   shall  become,  a  part  of  the  organic  law,  as  covenant  for  the  great 
subject?        future,  is   a   matter   for  the  serious  contemplation  of  the  whole 
country.     In  the  late  very  able  message  of  the  President,  he  re- 
274,       commends  Congress  to  retrace  the  measures  of  the  past.     This 
cannot  be  understood  to  recommend  the  annulment  of  the  thirteenth 
constitutional  amendment.     He  is  very  explicit  in  opposing  the 
reconstruction  laws  ;  and  therefore  he  may  be  construed  as  recom 
mending  the  repeal  of  the  Civil  Rights  Bill,  and  opposing  this  whole 
fourteenth  amendment,  with  no  other  recommendation  in  its  stead, 
than  to  allow  the  representation  from  the  States  elected  since  the 
46, 242.          acts  of  reconstruction,  directed  by  the  President  himself.     Few,  if 
any,  of  these  persons,  could  take  tho  test  oath  now  required  of 
all.     But  whether  this  is  to  be  repealed  or  to  bo  regarded  as  obso 
lete,  has  not  been  very  distinctly  avowed  by  those  who  demand  tho 
admission  of  members  from  those  States. 

What  may        285.  It  may  not  be  out  of  place  to  observe,  that,  as  the  third 
be  the  effect  section  disqualifies  a  class  from  office,  the  principle  of  inclusio  unius, 
sectlontuipon  exc^us^°  cilterius,  may  remove  the  disability  caused  by  the  test  oath 
the  test         as  to  all  not  in  that  section  enumerated.     If  this  be  so,  those  en- 
oath  ?  gaged  in  the  late  rebellion  would  gain  rather  than  lose  by  the  adop- 
242.        tion  of  the  amendment.     Many  leaders  in  that  movement  are  not 
disqualified. 


Sees.  1-5.]  CONCLUSION,   285,    286.  293 

The  question  of  what  are  the  constitutional  rights  of  men.  regard- 
loss  of  the  past,  is  always  one  of  serious  import.  Such  an  issue,  at 
such  a  time,  is  well  calculated  to  awaken  the  most  painful  appre 
hensions.  The  issues  involved  are : — 1.  Does  freedom  to  the  slave  What  are 
mean  equal  liberty  to  the  citizen  ?  2.  Have  they  been  made  citi- 
zens,  and  if  so,  what  is  the  extent  of  their  rights?  3.  Shall  tfce 
governments  of  the  States  lately  in  rebellion  be  left  to  those  only 
who  controlled  it ;  or  shall  all  participate  regardless  of  color  or  pre-  220,  274. 
vious  condition  ?  4.  Shall  the  ratio  of  representation  remain,  thus  23>  24« 
superadding  two-fifths  to  the  slave  States  without  one-half  of  the 
citizens  having  any  greater  participation  in  the  government  than 
the  slaves  had ;  or  shall  the  ratio  be  changed  so  as  to  represent 
votes  as  well  as  numbers  ?  5.  Shall  any  one  for  the  past  or  the 
future  be  disqualified  from  holding  office  because  of  participation  in 
insurrection  or  rebellion  against  the  United  States  ?  6.  Shall  there 
be  an  organic  guaranty  in  respect  to  the  national  debt ;  or  shall 
there  be  such  guaranty  against  the  rebel  debt  and  the  claim  for 
slaves  ? 

See  Farrar  upon  the  Fourteenth  Amendment,  §  448,  449. 

As  to  the  speculative  question,  What  is  to  be  the  future  of 
the  negroes  ?  an  opinion  would  be  as  hazardous  as  would  have  been 
an  uninspired  prophecy  as  to  the  future  of  the  Jews  the  day  they 
crossed  the  Eed  Sea. 

286.  The  editor  of  the  foregoing  notes  cannot  dismiss  the  sub- 1-278. 
ject  without  a  few  general  remarks,  which  have  suggested  them-  What  are 
selves  during  the  years  of  study  necessary  to  the  preparation  of th®  Se?eral 
such  a  work.     These  reflections  will  be  confined  to  the  changes  in  |J , £cetlol] 
the   organism  of  the  government,  silent  and  conventional.     The  editor  ? 
first  reflection  is,  that  in  the  choice  of  President  the  expectations  What  as  to 
of  the  framers  of  the  Constitution  have  been  disappointed.     The  the  choice 
choice  was  intended  to  be  left  to  the  electoral  colleges  uninfluenced       Sie£u 
by  a  previous  canvass.     It  was  probably  expected  that  a  failure  to 
agree  would  be  the  rule — not  the  exception — and  that  the  choice 
would  devolve  upon  the  House,  and  be  made  by  States  as  co-equals. 
The  first  disagreement  led  to  a  change  of  principle.     The  conven 
tion  system  of  nominations  has  destroyed  the  influence  of  the 
small  States,  and  transferred  the  selection  of  candidates  to  the  large 
States.     The  contest  is  really  directly  for  the  candidates,  and  the 
electors  are  but  conduit  pipes,  fearfully  responsible  to  their  direct 
constituents  to  whom  they  stand  pledged. 

The  next  noticeable  fact  has  been  the  increase,  and  now  the  cur- 184-186. 
tailment,  of  the  President's  power  and  patronage.     The  appointing 
to  office  was  always  a  prerogative  of  the  crown.     The  power  to 
remove  officers  at  pleasure,  at  first  doubtfully  exercised,  has  become 
a  fearful  engine  of  party.     The  tenure-of-office  law  has  attempted        184. 
to  check  the  exercise  of  the  power  without  reaching  the  root  of  the 
evil.    But  the  mischief  lies  not  so  much  in  the  constitutional  powers 
of  the  President,  as  the  too  common  error  that  the  administration  What  is  the 
is  the  government.    Upon  this  fallacy  of  not  living  "  under  Lincoln  to°  common 
rule,"  the  Southern  heart  was  fired  unto  resistance  and  civil  war ;  tho°power 
the  same  popular  fallacy  has  controlled  in  the  same  section  in  the  <»f  the 
contest  between  the  President  and  Congress.    So  that  whether  the  President? 


294 


CONCLUSION,  286. 


What  of  tho 

judicial 

power? 

195,  275. 


What  revo 
lutions  havt 
marked  the 
history  of 
the  govern 
ment? 
229-232. 


138. 


133. 

233-235. 


executive  sympathies  are  against  or  for  us,  we  overrate  his  powers 
for  evil  or  good.  Like  all  other  magistrates,  the  President  is 
obliged  to  be  controlled  by  the  Constitution  and  the  laws  of  the 
land. 

The  third  noticeable  fact  is,  that  the  judicial  jurisdiction  and 
influence  have  been  rather  increased  and  enlarged  than  diminished. 
The  reports  of  this  branch  of  the  government  stand  as  vast  monu 
ments  of  learning.  They  are  more  permanently  and  generally 
accessible  to  the  people  than  the  expositions  of  the  other  depart 
ments.  In  a  country  where  the  legal  profession  exert  so  mighty 
an  influence,  they  are  regarded  as  more  authoritative  than  other 
precedents,  because  the  exact  demarcations  of  judicial  power  are 
not  clearly  understood. 

The  revolutions  which  have  marked  the  history  of  the  govern 
ment  will  be  found  in  the  several  constitutional  amendments,  in 
the  acquisition  of  foreign  territory,  the  annexation  of  Texas,  the 
history  of  the  rebellion  and  the  consequences  which  have  followed. 
The  acquisition  of  territory  led  to  the  creation  of  "  colonial  govern 
ments,"  or  "inchoate  States  "  (generally  confused  under  the  unde 
fined  title  of  "  Territories"),  and  a  series  of  legislation  for  which 
no  direct  constitutional  grant  could  be  found ;  and  which  conse 
quently  caused  a  rapid  concentration  of  central  power.  Each  now 
revolutionary  fact  has  excused  an  exercise  of  the  supposed  "  neces 
sary  and  proper "  legislation.  These  were  incidents  of  national 
sovereignty  which,  perforce,  revolutionized  the  public  ideas  of 
the  country.  Tho  same  may  be  said  of  the  practical  necessity 
which  crushed  the  theory  of  secession.  Sundry  express  powers 
were  specially  granted  in  the  Constitution.  To  protect  and  shield 
these  for  the  benefit  of  the  whole  people,  all  of  the  incidental  neces 
sary  powers  had  to  bo  exerted.  And,  in  such  a  contest,  the  lead 
ing  actors  can  never  nicely  discriminate.  So  that  if  it  should  be 
come  necessary  to  revolutionize  States  or  change  State  boundaries 
and  organizations,  for  safety,  hereafter,  we  have  the  living  prece 
dents. 

And  yet  the  candid  student  must  admit  that  our  Constitution 
and  Union  still  stand  as  the  same  glorious  fabric,  with  the  powers 
of  departments  clearly  defined ;  with  whole  bills  of  rights  unim 
paired;  with  new  guaranties  for  liberty;  with  human  slavery 
stricken  out  of  the  instrument;  and  with  a  continuing  struggle  to 
protect  the  political  equality  of  all.  The  nation  is  mighty  and 
glorious  among  the  great  powers  of  the  earth,  and  may  it  be  per 
petual.  If  I  shall  have  contributed  any  thing  to  the  study  of 
this  great  fabric,  my  prayers  will  have  been  answered. 


JAN.  1,  1868. 


GEO.  W    PASCHAL. 


ANALYTICAL    INDEX. 


The  texts  of  the  Constitution  are  arranged  analytically  and  alpha 
betically.  The  Articles,  Sections,  and  Glauses  are  shown  both  as 
to  the  Constitution  noted  and  not  noted.  The  Preface,  Declara 
tion  of  Independence,  Articles  of  Confederation  and  the  author's 
notes  are  likewise  copiously  indexed. 

Art  sec.    cl.  pp, 

ABANDONED  lands.    (S.-o  Freedmen.) 

ABATEMENT.     Want  of  citizenship  must  be  pleaded  in,  n.  206,  p,  202 
ABEYANCE.     Offices  when  held  in,  n.  184,  §  3. 
ABSENCE.     In  the  absence  of  the  Vice-President  tbe  Senate  shall 

choose,  a  President  pro  tern 1        3        5          24,78 

Practice  as  to;  list  of  Presidents  pro  tern.,  n.  38. 
ABSENT  members.     A  smaller  number  than  a  majority  of  either 

House  of  Congress  may  compel  the  attendance  of  absent 

members,  in  such  manner,  and  under  such  penalties,  as 

each  house  may  provide .....       1        5        1          25, 84 

ABSENT  suitors.     Effect  of  judgments  against,  not  served,  n.  218. 

Not   republican  government  to  render  judgment  against, 

n.  233. 
ABSOLUTE  rights  of  private  property  is  an  universal  common  law 

principle,  n.  258. 
ABSOLUTELY  necessary.    The  strongest  qualification  of  necessary, 

n.  162.     Necessary  not   used  in  the  sense  of,  n.  128,  p.  139. 
ACCEPT.     No  person  holding  any  office  of  profit  or  trust  under  the 

United  States,   shall,  without  the   consent  of  Congress, 

accept  of  any  present,  emolument,  office,  or  title,  of  any 

kind  whatever,  from  any  king,  prince,  or  foreign  States..      198        31,152 
Office  defined,  n.  151.     U.'S.  Marshal  cannot  hold  two 

offices,  n.  151,  p.  153.     To  accept  a  new  office  vacates  the 

first,  n.  63.    A  pardon  must  be  accepted  before  it  will  take 

effect,  n.  177. 
ACCOUNT.     A  regular  statement  and  account  of  the  receipts  and 

expenditures  of  all  public  money  shall  be  published  from 

timototime 197       31,151 

How  these  accounts  are  kept,  n.  149. 
ACCUSATION.     In    all    criminal    prosecutions,   the  accused  to  be 

informed    of   the    nature    and  cause  of   the  accusation. 

•Amendments 6  44263 

Accused  defined  and  the  subject  discussed,  n  260. 
ACQUISITION  of  territory.     A  consequence  of  the  war  power,  notes 

118,274;  and  of  the  right  to  admit  new  States,  n.  229.     The 

history  and   right  to  acquire  discussed,  n.  232.     Revo 
lutionary  results  of,  n.  2S<5. 

ACQUITTAL.     No  one  shall  be  tried  for  the  same  crime  after,  n.  255. 
ACT  as  President.     In  case  of  the  removal,  deatli,  resignation,  or 

inability  of  both  the  President  and  Vice-President,  the 


296 


IXDEX. 


Congress  shall,  by  law,  declare  what  officer  shall  then  act 
RS  President,  and  such  officer  shall  act  accordingly  until 
the  disability  be  removed,  or  a  President  shall  be  elected .  2 

A  list  of  the  Vice-Presidents  who  have  acted  as  Presi 
dent,  n.  172.  The  act  of  Congress  regulating  who  shall 
act.  n.  172. 

ACTION.    (See  Case,  Suits.) 

ACTS,  records,  and  judicial  proceedings.  Full  faith  and  credit  shall 
be  given  in  each  State  to  the  public  acts,  records,  and 
judicial  proceedings  of  every  other  State.  And  the  Con 
gress  may,  by  general  laws,  prescribe  the  manner  in  which 
such  acts,  records,  and  judicial  proceedings  shall  be  proved, 

and  the  effect  thereof 4 

Full  faith  and  credit  defined,  n.  218.  The  law  of  Con 
gress  for  proving  these  nets,  n.  219,  p.  218.  Must  be  under 
the  Great  Seal,  Id.  Copied  from  the  Confederation,  p.  10. 

ACTS  of  Congress.     To  regulate   time   and  manner  of  electing 
senators,  n.  30.  To  fix  a  standard  of  weights  and  measures, 
n.  102,  p.  117.    To  regulate  the  tenure  of  office,  n.  184. 
Prescribing  manner  of  proving  laws,  records.  &c.,  n.  219. 
The  several  reconstruction  acts,  n.  276. 
Take  effect  from  their  approval  by  the  President,  n.  66. 

ADAM,  ANDREW,  of  Pennsylvania.  Signed  the  Articles  of  Con 
federation,  p.  21. 

ADAMS,  JOHN.  Delegate  from  Mass.  Signed  the  Dec.  of  Ind.  p.  7, 
First  Vice-President  of  U.  8.,  n.  37.  Second  President,  u. 
166.  Messages  of,  as  President,  delivered  to  Congress  in 
person,  n.  187. 

ADAMS,  JOHN  QUINCY.    Sixth  President  of  the  U.  S.,  n.  166. 

ADAMS,  SAMUEL.  Delegate  from  Mass.  Signed  the  Dec.  of  Ind.  p. 
7;  and  the  Articles  of  Confederation,  p.  21. 

ADAMS,  THOMAS,  of  Virginia.  Signed  the  Articles  of  Confedera 
tion,  p.  21. 

ADJOURN  from  day  to  day.    A  smaller  number  than  a  majority  of 

each  house  of  Congress  may  adjourn  from  day  to  day 1 

ADJOURN.  Neither  house,  during  the  session  of  Congress,  shall, 
without  the  consent  of  the  other,  adjourn  for  more  than 
three  days,  nor  to  any  other  place  than  that  in  which  the 
two  houses  may  be  sitting 1 

ADJOURNMENT  of  the  Congress  of  the  Confederation  not  longer  than 
six  months,  Art.  IX.  p.  18. 

ADJOURNMENT.  If  any  bill  shall  not  be  returned  by  the  President 
•within  ten  days  (Sundays  excepted)  after  it  shall  have 
been  presented  to  him,  the  same  shall  be  a  law,  in  like 
manner  as  if  he  had  signed  it,  unless  the  Congress  by  their 
adjournment  prevent  its  return,  in  which  case  it  shall  not 

be  a  law 1 

The  President  must  receive  the  bill  ten  entire  days 
before,  or  it  will  not  become  a  law,  n.  69. 

ADJOURNMENT.  Every  order,  resolution,  or  vote,  to  which  the 
concurrence  of  the  Senate  and  House  of  Representatives 
may  be  necessary  (except  on  a  question  of  adjournment), 
shall  be  presented  to  the  President  of  the  United  States. 
(For  proceedings,  see  Jl evolution.) 1 

ADJOURNMENT.  In  case  of  disagreement  between  the  two  houses 
of  Congress  with  respect  to  the  time  of  adjournment,  the 
President  may  adjourn  them  to  such  time  as  he  shall  think 

proper 2 

This  power  has  never  been  exercised,  n.  188. 

ADJUTANT-GKNERAL.    An  officer  in  the  army,  n.  124. 

ADMINISTRATION.     Effect  of  judgment  and  sales  under,  n.  161. 

ADMINISTRATION  of  justice.  He  (George  III.)  has  obstructed  the 
Dec.  of  Ind.  p.  8. 

ADMIRAL.     Chief  officer  in  the  navy,  n.  128. 

ADMIRALTY  and  maritime  jurisdiction.     The  judicial  power  shall 

extend  to  all  cases  of  admiralty  and  maritime  jurisdiction .      8 
Defined;  extent  of  jurisdiction  ;  has  been  enlarged  to 
waters. n.  203. 


Art.  sec.    cl. 


pp. 
84,169 


88,213 


25,84 


7  2  27, 91 

7  8  28, 93 

8  86, 188 

2  1  87,194 


INDEX.  297 

Art.  sec.    cl.  pp. 

ADMITTED.    New  States  may  be  admitted  by  the  Congress  into 

this  Union 4        3        1        30, 234 

Effect  of  admission,  n.  229.  List  of  new  States  and  dates 
of  admission,  n  230. 

ADOPTION  of  this  Constitution.  All  debts  contracted  or  engage 
ments  entered  into  before  the  adoption  of  this  Constitu 
tion,  shall  be  as  valid  against  the  United  States  under  this 

Constitution  as  under  the  Con  federation . 6  1        40, 247 

This  article  explained,  n.  237.  When  the  States  shall 
have  adopted  the  14th  constitutional  amendment,  n.  276, 
p.  2S3,  §  5. 

ADVICE  and  consent  of  the  Senate.  President  shall  have  power, 
by  and  with  the,  to  make  treaties  and  appoint  ambassadors 

and  all  other  officers 222       85,174 

When  and  how  given,  n.  17S.  When  necessary  to  an 
appointment,  n.  179.  Ett'ect  of,  in  fixing  tenure  of  office,  n. 
184,  p.  179,  §  1.  To  advise  upon  suspension,  if  the  Senate 
refuse  to  concur,  Id.  §  2.  If  the  Senate  fail  to  advise,  the 
office  to  remain  in  abeyance,  n.  184,  p.  ISO,  §  3.  (See  Ten 
ure  of  Office.) 
AFFIRMATION.  (See  Oath  or  Affirmation,  n.  242.) 

AGE.     Qualification  for  a  representative  in  Congress,  25  years 122         23,64 

See  remarks  upon,  n.  46. 

AGK.     Qualification  for  a  senator  in  Congress,  30  years. 1        3        S          24,  77 

AGE.    Qualification  for  President  of  the  "United  S'tutes,  35  years...       214        34,169 

35  years  an  indispensable  requisite,  n.  171. 
AGE.    Qualification  for  Vice-President  of  the  United  States,    85 

years.    Amendment* 12  1        46,164 

AGREEMENT  or  compact.  No  State  shall,  without  the  consent  of 
Congress,  enter  into  any  agreement  or  compact  with  an 
other  State  or  a  foreign  power 1  10  3  32,161 

Relates  to  what  prohibitions ;  may  enter  into  what,  n. 

ALABAMA.  Qualifications  for  suffrage  in,  n.  17,  p.  58.  Six  repre 
sentatives,  by  the  census  of  1860,  n.  24.  Population  of,  in 
every  decade,  n.  24,  pp.  69-71.  Did  not  vote  in  the  Presi 
dential  election  of  1S64,  n.  167.  Admitted  as  a  State,  n. 
230.  Ratified  13th  amendment,  n.  274.  Rejected  14th 
amendment,  n.  275.  One  of  the  non-reconstructed  States, 
n.  276.  Its  provisional  government  defined,  n.  276,  p.  286, 
§  1.  Action  of  its  convention  upon  reconstruction,  n. 
277.  Number  of  registered  voters  under  the  reconstruc 
tion  laws.  n.  278. 

ALIEN.  A  naturalized  is  a  natural  bornsubject,  from  birth,  notes  274 

ALIEN  enemies.     During  war  the  inhabitants  of  each  country  are, 

n.  118.     The  inhabitants  of  the  insurgent  and  rebel  States 

were  not  during  the  rebellion,  n.  213. 

ALIENAGE  is  an  indispensable  element  in  the  process  of  naturaliza 
tion,  n.  274,  j>.  276. 
ALIENS,  or  persons  of  foreign  birth,  not  eligible  as  President  or 

Vice-President  of  the  United  States 214        84.167 

Amendments 12  8        40,166 

Effect  of  naturalization  upon,  notes  93,  209.    Of  what  suits 

courts  have  jurisdiction.  Cannot  maintain  a  real  action  ;  de 
fined,  n.  209.     May  take  and  hold  real  estate,  n.  209,  p.  204. 

May  be  made  citizens  by  revolution  or  general  law.     The 

Constitution  provides  for  naturalization  of,  n.  167.     See 

Citizen,  notes  19.  80,  35,  63.  69,  170.  206,  220,221,  274,275, 

277.     Negroes  born  in  United  States  cannot  he,  n.  274. 
ALLEGATION.    Citizenship  of  different  States  must  be  averred  to 

give  jurisdiction,  n.  206. 
ALLEGIANCE.    Defined,  n.  22<>,  p.  164.     An  alien  is  one  born  out 

of,  n.  209.    Treason  is  a  breach  of,  n.  215.     Native  born 

owe  allegiance  to  the  United  States,  n.  220.      All  persons 

born  in   the,  of  the    United   States,   are  native   citizens 

thereof,   n.   274.     Paramount  to   the    United   States  and 

qualified  to  the  States,  n.  118,  p.  129,  Pref,  p.  xiii.    Indians 

13* 


298  INDEX. 

Art.  sec.    cl.  pp. 

owe  no,  to  tho  United  States,  n.  92,  p.  112.  "That  I  will 
bi-ar  true  faith  and  allegiance  to  the  United  States,"  n. 
242,  p.  251.  Native  born  owe  allegiance  from  their  birth,  n. 
220,  p.  2-25.  Claim  of  allegiance  to  the  Colonies  and  Great 
Britain  and  how  absolved,  n.  274.  p.  273. 

ALLIANCE.     No  State  shall  enter  into  any  alliance 1      10        1        81,153 

This  is  a  national  power,  n.  152.  The  same  under  tho 
Confederation,  Art.  VI.  p.  11. 

ALMIGHTY  GOD.  "Looking  to  the  favor  and  guidance  of,"  n.  5, 
p.  53.  Eemark  on  this,  n.  5. 

AMBASSADORS.  The  President  shall  nominate,  and  by  and  with 
the  advice  and  consent  of  the  Senate  appoint,  ambassa 
dors,  Ac 2  2  35,174 

AMBASSADORS.    The  President  shall  receive  ambassadors  and  other 

public  ministers 2        3  £6,183 

The  power  to  receive,  and  other  public  ministers,  carries 
along  with  it  the  power  to  receive  consuls,  n.  188. 

AMBASSADORS.  The  judicial-power  shall  extend  to  all  cases  affect 
ing  ambassadors,  other  public  ministers,  and  consuls 3  2  1  37, 194 

"Defined,  n.  195.     By  what  suits  they  are  affected,  n.  202. 

AMBASSADORS.  In  all  cases  affecting  ambassadors,  other  public 
ministers,  and  consuls,  the  Supreme  Court  shall  have 

original  jurisdiction 322       37,204 

This  clause  explained,  n.  210.  No  State  under  the  Con 
federation  to  receive  without  the  consent  of  Congress, 
Art.  VI.  p.  11.  The  Congress  misht  send  and  receive, 
Art.  IX.  p.  14. 

AMENDMENTS,  as  on  other  bills.  All  bills  for  raising  revenue  shall 
originate  in  the  House  of  Representatives;  but  the  Senate 
may  propose,  or  concur  with,  amendments,  as  on  other 

bills........ 1       T       1         2T,30 

the  Constitution.  The  Congress,  whenever  two- 
thirds  of  both  houses  shall  deem  it"  necessary,  shall  pro 
pose  amendments  to  this  Constitution,  or,  on  the  applica 
tion  of  the  legislatures  of  two-thirds  of  the  several  States, 
shall  call  a  convention  for  proposing  amendments,  which, 
in  either  case,  shall  be  valid,  to  all  intents  and  purposes, 
as  part  of  this  Constitution,  when  ratified  by  the  legis 
latures  of  three-fourths  of  the  several  States,  or  by  con 
ventions  in  three-fourths  tnereof.  as  the  one  or  the  other 
mode  of  ratification  may  be  proposed  by  the  Congress; 
provided  that  no  amendment,  which  may  be  made  prior  to 
the  year  1808.  shall,  in  any  manner,  affect  the  first  and 
fourth  clauses  in  the  ninth  section  of  the  first  article ;  and 
that  no  State,  without  its  consent,  shall  be  deprived  of  its 

equal  suffrage  in  the  Senate 5  40,  246 

In  what  way  they  have  been  proposed  ;  President's  ap 
proval  not  necessary,  n.  236.  Date  and  history  of  the,  notes 
244,  274.  275.  Twelfth  amendment,  relative  to  election  of 
President,  pp.  46,  164.  Compared  with  original  Constitu 
tion,  notes  163,  16S&.  For  amendments,  see  pp.  43-50, 
164,  254-294,  notes  245-286. 

AMERICA.  The  Confederacy  shall  be  "The  United  States  of." 
Art  I.  p.  9. 

AMERICA.  "  We,  the  People  of  the  United  States,"  &c.,  "  do  ordain 
and  establish  this  Constitution  for  the  United  States  of." 

Preamble 22,  51 

United  States  of,  defined,  n.  13.  Preamble  of  the 
Constitution  of  the  Confederate  States  of  America,  n.  5, 
p.  51. 

ANDERSON,  JOSEPH.     Presiding  officer  of  the  Senate,  n.  88,  p.  79. 

ANNIHILATION.     Legislative  bodies  incapable  of,  Dec.  of  Ind.  p.  3. 

APPEAL.     In  disputes  between  States,  Art.  IX.  p.  14. 

APPELLATE  jurisdiction.    The  Supreme  Court  shall  have,  both  as 

to  law  and  fact.     (See  Supreme  Court.} 3        2        2        87,  204 

Defined ;  can  only  be  exercised  under  acts  of  Congress, 
n.  211. 

APPOINT.    Each  State  shall  appoint,  in  such  manner  as  tho  legis- 


INDEX. 


Art.  sec.    cl. 
lature  thereof  may  direct,  a  number  of  electors.     (See 

Elector*.) 212 

All  the  States  now  appoint  electors  by  popular  election, 
n.  167.  President's  power  to  appoint  defined,  n.  179,  pp.  175, 
176.  To  appoint  and  commission  are  not  the  same  thing, 
n.  179,  p.  176.  The  power  to  appoint  carries  the  power  to 
remove,  n.  184.  p.  178;  but  this  is  restricted  bv  the  Civil 
Rights  Bill,  n.  184,  p.  179,  §  1,  2.  Duty  of  the"  President 
to  appoint  commanders  of  military  districts  under  the 
reconstruction  laws,  n.  276,  p.  282,  §  2.  The  commanding 
general  of  each  district  shall  appoint  boards  of  registration, 
n.  276,  p.  282,  §  4. 

APPOINTED.  No  senator  or  representative  shall,  during  the  time 
for  which  he  was  elected,  be  appointed  to  any  civil  office 
under  the  authority  of  the  United  States,  which  shall  have 
been  created,  or  the  emoluments  of  which  shall  have  been 

increased  durinsr  such  time..     1        6        2 

To  accept  such  office  vacates  his  seat,  n.  62,  63.  (See 
Office.) 

APPOINTKD.  No  senator  or  representative,  or  person  holding  an 
office  of  trust  i-r  profit  under  the  United  States,  shall  be 
appointed  an  elector 212 

APPOINTMENT  of  officers  of  the  militia  reserved  to  the  States  re 
spectively 1  8  16 

This  power  discussed,  n.  135.  This  power  ceases  when 
the  citizens  arc  conscripted,  n.  118,  p.  132. 

APPOINTMENT  of  electors  of  President  and  Vice-President  of  the 

United  States.    (See  Appoint.)    Amendments 12 

APPOINTMENTS.  The  executives  of  States  may  make  temporary 
appointments  of  Senators  in  the  recess  of  the  legislatures 

thereof  to  fill  vacancies 1        3        2 

He  cannot  make  an  appointment  to  fill  a  prospective 
vacancy,  n.  33. 

APPOINTMENTS.  The  President  shall  nominate,  and  by  and  with 
the  advice  and  consent  of  the  Senate,  shall  appoint,  ambas 
sadors,  other  public  ministers,  and  consuls,  judges  of  the 
Supreme  Court,  and  all  other  officers  of  the  United  States 
whose  appointments  are  not  herein  otherwise  provided  for, 
and  which  shall  be  established  by  law.  But  the  Congress 
may  by  law  vest  the  appointment  of  such  inferior  officers, 
as  they  think  proper,  in  the  President  alone,  in  the  courts 

of  law,  or  in  the  heads  of  departments 222 

Tliis  duty  is  imperative,  n.  179,  p.  175.  Without  a  com 
mission  there  is  no  appointment.  Nomination  and  appoint 
ment  are  voluntary  acts,  n.  179,  p.  176.  President  may 
make  temporary,  during  suspension,  n.  184,  p.  179.  §  2. 

APPOI-XTMENTS.  The  President  shall  have  power  to  fill  up  all 
vacancies  that  may  happen  during  the  recess  of  the  Senate, 
by  granting  commissions  (or  appointments),  which  shall 

expire,  at  the  end  of  their  next  session 2        2        8 

The  subject  discussed  and  explained;  "vacancy"  de 
fined,  n.  185.  Such  appointments  continue  during  the 
session,  n.  1S6. 

APPORTIONED.     Representatives  and  direct  taxes  to  be  apportioned 

among  the  several   States  according  to  their  respective  j    128 

numbers,  «fcc.     Amendments. (14        2 

Defined,  n.  23.     (See  Representatives.') 

APPORTIONMENT.  Ratio  for,  through  each  decade,  notes  21,  230. 
Direct  taxes  to  be  laid  by  the  rule  of,  notes  22,  144.  The, 
of  Representatives  under  census  of  I860,  n.  24. 

APPRAISEMENT  and  stay  laws  unconstitutional,  n.  160. 

ALM-KENTICES  are  "persons  held  to  service,"  n.  226. 

APPROPRIATION  of  money  to  the  use  of  armies  shall  not  be  for  a 
longer  period  than  two  years.  Mav  be  for  a  shorter  period, 
n.  126 ". 

APPROPRIATIONS.  No  money  shall  be  drawn  from  the  Treasury 
but  in  consequence  of  appropriations  made  by  law.  and  a 
»egular  statement  and  account  of  the  receipts  and  expendi- 


pp. 

82,164 


2T,  90 

82,164 
29,135 

46,164 
24,76 


35,174 


86,132 


26,  C7 

48, 279 


1        8      12        29,130 


300 


INDEX. 


Art.  sec.    cL 


pp. 
31, 151 


27,91 


2T,91 


28,93 


tares  of  all  public  money  shall  be  published  from  time 
to  time  ...............  ...............................       1 

"Money"  defined,  and  Confederate  Constitution  com 

pared,  n.  149,  p.  151.     Money  iu  the  post-office  is  within 

the  restriction,  n.  149,  p.  152. 
APPROVAL  of  President  makes  a  bill  law,  n.  66. 
APPBOVED.     Every  bill  which  shall  have  passed  the  House  of  Rep 

resentatives  and  the  Senate,  shall,  before  it  become  a  law, 

be  presented  to  the  President.     If  he  approve,  he   shall 

sign  it.     (See  Veto.)  ...................................      1 

Every  bill  takes  effect  prospectively  from  the  time  it  is 

approved,  n.  66. 
APPROVED.    Any  bill  returned  by  the  President  with  objection, 

may  become  a  law  if  approved  by  two-thirds  of  both 

houses  of  Congress  ......................................      1 

The  veto  power  and  its  history,  n.  67.   Two-thirds  of  a 

quorum  is  sufficient,  n.  68. 
APPROVED.    Every  order,  resolution,  or  vote  to  which  the  concur 

rence  of  the  Senate  and  House  of  Representatives  may 

be  necessary  (except  on  a  question  of  adjournment),  shall 

be  presented  to  the  President  of  the  United  States  to  be 

approved  or  disapproved  by  him  ____  ,    ...................      1 

A  joint  resolution  becomes  a  law,  n.  70. 
ABE.     Is  100  square  meters,  n.  102,  p.  119,  §  2. 
ABKANSAS.     Qualification  of  suffrage  in,  n.  17,  p.  60.    Three  rep 

resentatives,  by  census  of  1860,  n.  24,  p.  6S.    Population  of; 

in  each  decade,  n.  24,  pp.  69,  70.     Did  not  Vote  in  the  presi 

dential  election  of  1S64,  n.  167.     Assigned  to  the   eighth 

judicial  circuit,  n.  197.     Admitted  into  theUnion,  n.   230. 

Its  history  during  the  rebellion,  n.  235.    Ratified  the  13th 

amendment,  n.  274;  and  rejected  the  14th,   n.  275.     One 

of  the  non-reconstructed  States,  n.  276,  §  1.  Its  provisional 

government  defined,  n.  276,  p.  286.    Number  of  registered 

voters,  n.  278. 

ARMED  troops.     For  quartering  large  bodies  of,  Dec.  of  Ind.  p.  4. 
AKMIES.     Congress   shall    have    power    to    raise    and    support 

armies,  but  no  appropriation  of  money  to  that  use  shall  be 

for  a  longer  term  than  two  years  .........................       1        8      12        29,130 

This  power  did  not  exist  under  the  Confederation,  n.  122. 

The  rights   of  enlistment    and  conscription  ;    extent  of 

this  power,  n.  125.    Limitation  on  appropriations  for,  n. 

ARMING.    Congress  shall  have  power  to  provide  for  organizing, 

arming,  and  disciplining  the  militia  ............  ..........      1        8      16        29,135 

The  extent  of  this  power  defined,  u.  134,  135. 
ARMS.    The  right  of  the  people  to  keep  and  bear  arms  shall  not  be 

infringed.    Amendments  ................................       2  43,256 

This  is  a  national  right  ;  does  not  give  the  right  to  carry 
concealed  weapons,  n.  249. 
ABMY.    Congress  shall  have  power  to  make  rules  for  the  govern 

ment  and  regulation  of  the  land  and  naval  forces  .......      1        8      14        29,133 

"Rules"  defined,  n.  129.    Defined;  and  rank  and  grade 
in,  n.  124. 
ARMY.    The  President  shall  be  commander-in-chief  of  the  army.      2        2        1        35,  171 

Why  this  power  was  conferred.   Need  not  command  in 
person.    What  rules  he  may  establish,  n.  175. 

ARMY.     No  soldier  shall,  in  time  of  peace,  be  quartered  in  any 
house  without  the  consent  or  the  owner,  nor  in  time  of 
war,  but  in  a  manner  to  be  prescribed  by  law.    Amend 
ments..  ................................................      3  44,256 

This  relates  to  armies,  n.  250. 

ABMY  or  Navy.     No  person  shall  be  held  to  answer  for  a  capital  or 
otherwise  infamous  crime,  unless  on  a  presentment  or 
indictment  of  a  grand  jury,  except  in  cases  arising  in  the 
land  or  naval  forces,  or  in  the  militia,  when  in  actual  ser 
vice,  in  time  of  war  or  public  danger.   Amendments  ......       5  44,  258 

The  extent  of  this  exception  defined  and  discussed,  notes 


INDEX.  301 

Art.  sou.    cl.  pp. 

ABBEST.  Senators  and  representatives  shall,  In  all  cases  except 
treason,  felony,  and  breach  of  the  peace,  be  pri  vile-red  from 
arrest  during  their  attendance  at  the  sessions  of  their  re 
spective  houses,  and  iu  going  to  and  returning  from  the 
same ...  161  26,88 

The  privilege  extends  to  all  civil  process,  n.  57.  The 
privilege  commences  from  the  election,  n.  09,  and  pro 
tects  the  member  who  loses  his  seat  on  contestation, 
n.  60.  All  persons  under  military  arrest,  to  be  tried  with 
out  unnecessary  delay,  and  how,  n.  276,  p.  2S2,  §  4  When 
the  President  may  order  military  arrests,  n.  165. 
LS,  «fcc.  Congress  shall  have  power  to  exercise  exclu 
sive  legislation  over  arsenals,  Ac 1  8  17  80,136 

Extent  of  jurisdiction  over,  defined  and  discussed.  The 
power  to  legislate  carries  the  power  to  make  it  effectual,  n. 
137. 

Confederation  and  perpetual  Union,  pp.  8,  21. 

The  preamble  to,  pp.  8,  9.  By  what  States,  p.  9.  Style 
of.  Art.  I.  p.  9. 

Each  State  retains  its  sovereignty,  Ac.,  Art.  II.  p.  9.  A 
firm  league  of  friendship,  Art.  Ill  p.  10. 

For  common  defense,  the  security  of  their  liberties,  and 
general  welfare,  Art.  III.  p.  9.  Who  entitled  to  the  priv 
ileges  and  immunities  of  free  citizens,  Art.  IV.  p.  10.  Freo 
ingress  and  egress,  Ac.,  Id.  Fugitives  from  justice  to  be 
delivered  up,  Id.  Full  faith  and  credit  to  acts,  records, 
and  judicial  proceedings,  of  the  courts  of  each  State, 
Id.  Delegates  to  Congress  to  be  appointed,  and  how, 
Id.  Not  less  than  two  nor  more  than  seven  members, 
Art.  V.  p.  10.  Qualifications  of  delegates,  Id.  Each  State  to 
maintain  its  delegates,  Id.  And  have  one  vote,  Id.  Free 
dom  of  speech,  of  debate,  and  from  arrests,  Id.  In 
hibitions  upon  the  States,  Art.  VI.  pp.  11,  12,  13.  Officers 
under  the  rank  of  colonel  to  be  appointed  by  the  legis 
lature,  Art.  VII.  All  chanres  of  war  and  other  expenses, 
how  levied,  Art.  VIII.  p.  13.  The  powers  of  the  United 
States  in  Congress,  and  mode  of  proceeding.  Art.  IX.  pp. 
14-19.  To  determine,  peace  and  war,  ambassadors,  treaties, 
captures,  prizes,  marque  and  reprisal,  piracies,  felonies, 
and  appeals,  Art.  IX.  p.  14  Controversies  between  States, 
and  the  mode  of  hearing  and  settlement,  Art.  IX.  pp.  14, 
15.  And  grants  by  different  States,  Id.  p.  16.  Coin, 
weights,  and  measures,  Indians,  post-offices,  and  postage, 
Id.  Officers  above  regimental,  Art.  IX.  pp.  16,  17.  "A 
Committee  of  the  States,"  other  committees,  and  civil  offi 
cers.  To  borrow  money,  emit  bills  of  credit,  &c.,  Art.  IX. 
p.  17.  The  navy  and  army,  Id.  Quotas,  how  arranged. 
Id.  p.  18.  Restrictions  upon  Congres\  without  the  assent 


of  nine  States,  Id.  What  upon  majority,  Id.  The  power 
and  limitations  on  adjournment;  yeas  and  nays,  and  pub 
lication  of  journal,  Art.  IX.  p.  19.  The  powers  of  the  Com 
mittee  of  the  States.  Art.  X.  p.  19.  Canada  and  other 
States,  how  admitted,  Art.  X.  p.  19.  The  debts  of  tho 
government,  how  guarantied,  Art.  XII.  p.  19.  The  States 
to  abide  the  determinations  of  Congress,  Art.  XIII.  p.  20. 
Union  perpetual,  Id.  Articles  inviolably  observed,  Id, 
Alterations,  how  made,  Id.  Eatification  of  the  articles, 
p.  20 ;  Signers,  p.  21. 

AF.TS.  Congress  shall  have  power  to  promote  the  progress  of 
science  and  useful  arts,  by  securing,  for  limited  times,  to 
authors  and  inventors,  the  exclusive  right  to  their  re 
spective  writings  and  discoveries ". 188  29,121 

To  promote,  progress,  arts,  science,  and  authors,  defined, 
n.  107.  Art  distinguished  from  science,  n.  107,  p.  122.  In 
ventors  defined,  108.  Patents  liberally  construed,  108. 
The  laws  on  the  subject.  Id. 

ASSEMBLE.    Congress  shall  assemble  at  least  once  in  every  year, 


302 


INDEX. 


Art,  sec. 
on  the  first  Monday  in  December,  unless  they  shall  by  law 

appoint  a  different  day 1        4 

The  sessions  now  defined  by  law,  n.  43. 

ASSEMBLE.  Congress  shall  make  no  law  abridging  the  right  of 
the  people  peaceably  to  assemble  and  to  petition  the  gov 
ernment  for  a  redress  of  grievances.  Amendments 1 

This  right  discussed,  n/248. 

ATCHISON,  DAVID  K.    Presiding  officer  of  Senate,  n.  38,  pp.  80,  81. 
ATTAINDER.     No  bill  of  attainder  or  eas  post  facto  law  shall  be 

passed 1        9 

Bill  of,  defined  and  discussed,  n.  142,  pp.  146,  147. 

ATTAINDER.     No  State  shall  pass  any  bill  of  attainder,  &c 1      10 

These  terms  relate  to  criminal  laws  only,  n.  156. 
ATTAINDER  of  treason.     The  Congress  shall  have  power  to  declare 
the  punishment  of  treason,  but  no  attainder  of  treason 
shall  work  corruption  of  blood  or  forfeiture,  except  during 

the  life  of  the  person  attainted 8        3 

"  Corruption  of  blood"  defined,  n.  217. 
ATTENDANCE.     Loss  than  a  quorum  of  either  house  may  compel 

the  attendance  of  absent  members  1        5 

Either  house  may  compel  attendance  of  witnesses,  n.  49. 
ATTENDANCE.     Members  of  Congress  privileged  from  arrest  during 

their  attendance  nt  sessions,  &c.    (See  Arrest.) 1        6 

AUTHENTICATION   of  records,   acts,   and   judicial    proceeding*  of 

States 4        1 

The  act  of  Congress  prescribing  the  mode  of,  n.  219,  p. 
221.      Of  legislative  acts,  n.  219,  p.  218.     The  whole  sub 
ject  fully  discussed,  Id. 
AUTHORITY.    Paramount,  of  the  United  States  over  the  provisional 

governments  of  the  rebel  States,  n.  276,  p.  283.  $  6. 
AUTHORS  ma)'  secure  exclusive  rights  to  their  writings  for  a  limited 

time 

Defined,  n.  107.  No  exclusive  property  in  a  published 
work  except  under  an  act  of  Congress,  Id. 

BAIL.  Excessive  bail  shall  not  be  required,  nor  excessive  fines 
imposed,  nor  cruel  and  unusual  punishments  inflicted. 

Amendments 8 

See  notes  12,  245,  275.  The  question  of  ability  to  be 
considered  ;  the  fifty-dollar  fine  under  the  internal  revenue 
law  is  not  excessive;  six  months  imprisonment  is  not  cruel, 
n.  267.  The  President  cannot  appoint  commissioners  of, 
n.  183,  p.  178. 

BALD-WIN,  ABRAHAM.  Deputy  from  Georgia.  Signed  this  Constitu 
tion,  pp.  43,  252.  Presiding  officer  of  the  Senate,  n.  38, 
p.  79. 

BALDWIN,  HENRY.     One  of  the  supreme  judges,  n.  197,  p.  193. 

BALLOT.  The  electors  shall  vote  by  ballot  for  President  nnd  Vice- 
President  of  the  United  States.  They  shall  name  in  their 
ballots  the  person  voted  for  as  President,  and,  in  distinct 
ballots,  the  person  voted  for  as  Vice-President.  Amend 
ments  12 

BALLOT,  If  no  person  have  a  majority  of  the  electoral  votes,  the 
House  of  Representatives  shall  choose,  immediately,  by 
ballot,  the  President.  Amendments 12 

BANISTER,  JOHN,  of  Virginia.  Signed  Articles  of  Confederation,  p.  21. 

BANKRUPT  defined  literally,  n.  91,  p.  113. 

BANKRUPTCIES.  Congress  shall  haVe  power  to  establish  uniform 
laws  on  the  subject-of  bankruptcies  throughout  the  United 

States 1 

Defined,  n.  94,  95,  pp.  113,  114.  The  States  may  pass, 
under  restrictions,  n.  96. 

BANK  bills  are  not  bills  of  credit,  n.  154.  The  repeal  of  a  bank  chnr- 
ter  does  not  necessarily  impair  the  contract,  n.  157,  p.  156. 

BANKS.     The  State  may  repeal"  their  charters,  when,  n.  157,  p.  155. 

BANKS,  national.  The  States  may  tax  the  interest  of  the  share 
holders,  n.  74.  As  to  the  power  of  Congress  to  create, 
n.80. 


cl. 

2 


pp. 
25,83 

43,254 

31. 14C 
81,153 

38,  213 
25,84 

26,88 
38,  213 


188        29,121 


45,26T 


46,164 
40,165 

28,112 


INDEX.  303 

Art    sec.     cL         pp. 

BANKS,  NATHANIEL  P.    Speaker  of  the  House,  n.  26.  p.  73. 
BARBOIH:,  JAMES.     Presiding  officer  of  the  Senate,  n.  33,  p.  79. 
BAKBOUK,  PHILIP  P.     Speaker  of  the  House  of  Representatives, 

n.  26.     One  of  the  supreme  judges,  n.  197,  193. 
BARTI.KTT,  JOSIAH,  of   N.  II.   Signed   the  Dec.  of  Ind.  p.  7;  and 

Articles  of  Confederation^  p.  21  . 
BASSETT,  RICHARD.   Deputy  from  Delaware.    Signed  this  Constitu 

tion,  pp.  42,  252. 
BEDFORD,  Jr.,  GUNNING.  Deputy  from  Delaware.  Signed  this  Con 

stitution,  pp.  42,  252. 

BTCLL.  JOHN.     Speaker  of  the  House,  n.  26,  p.  73. 
BENJAMIN,  JUDAII  P.     Expelled  from  the  Senate,  n.  50. 
BILL  of  attainder.    No  bill  of  attainder  or  ex  post  facto  law  shall 

be  passed  ..............................................       1        9        8  81 

(See  Attainder,  n.  142.)  Inflicts  legislative  punishment 

without  a  legal  trial,  n.  142,  pp.  146,  147.     The  Missouri 

constitutional  test  oath  is  a  hill  of  attainder,  Id. 
BILL.    Civil  Rights,  n.  6.   Constitutional;  discussed  and  explained, 

n.  274.    Tenure  of  office,  n.  184,  p.  179. 
BILL.    Every  bill  which  shall  have  passed  the  House  of  Represen 

tatives  and  the  Senate  shall,  before  it  become  a  law,  be 

presented  to  the   President  of  the  United  States;  if  he 

approve,  he  shall  sign  it.  but  if  not,  he  shall  return  it,  with 

his  objections,  to  that  house  in  which  it  shall  have  origi 

nated,  who  shall  enter  the   objections  at   large  on  their 

journal,  and  proceed  to  reconsider  it.     If,  after  such  recon 

sideration,  two-thirds  of  that  house  shall  agree  to  pass  the 

bill,  it  shall  be  sent,  together  with  the  objections,  to  the 

other  house,  by  which  it  shall  likewise  be  reconsidered, 

and  if  approved  by  two-thirds  of  that  house,  it  shall  be 

come  a  law.     But  in  all  such  cases,  the  votes  of  both 

houses  shall  be  determined  by  yeas  and  nays,  and  the 

names  of  the  persons  voting  for  and  against  the  bill  shall 

be  entered  on  the  journal  of  each  house,  respectively  .....      1        7        2          27,  91 
When  bills  take  effect,  n.  66.     Veto  or  negative  defined, 

n.  67.     History  of  the  subject,  Id. 
BILL.     If  any  bill  shall  not  be  returned  by  the  President  within 

ten  days  (Sundays  excepted)  after  it  shall  have  been  pre 

sented  to  him,  the  same  shall  be  a  law,  in  like  manner  as 

if  he  had  signed  it,  unless  the  Congress,  by  their  adjourn 

ment,  prevent  its  return,  in  which  case  it  shall  not  be  a 

law  ....................................................      1       7       2         27,91 

There  must  be  ten  entire  days.  n.  69. 
BILL.    Every  order,  resolution,  or  vote,  to  which  the  concurrence 

of  the  Senate  and  House  of  Representatives  may  be  neces 


sary  (except  on  a  question  of  adjournment),  shall  be  pre 
sented  to  the  President  of  the  United 


States;  and,  before 

the  same  shall   take  effect,  shall  be  approved  by  him,  or, 

being  disapproved   by  him,   shall   be    repassed  by  two- 

thirds  of  the  Senate  and  House  of  Representatives,  accord 

ing  to  the  rules  and  limitations  prescribed  in  the  case  of  a 

bill  ..................................................      1        7       8         28,  93 

Joint  and  concurrent  resolution  defined,  n.  70. 
BILLS.     All  bills  for  raising  revenue  shall  originate  in  the  House 

of  Representatives,  but  the  Senate  may  propose  or  concur 

with  amendments,  as  on  other  bills  ..     ................       1        7        1          27,90 

Copied,  n.  64.     Revenue  defined,  n.  65. 
BILLS  of  credit.     No  State  shall  emit  bills  of  credit  ..............       1      10        1        81,153 

Defined  and  discussed,  n.  154.     Proposed  in  the  clause  to 

borrow  money,  n.  82.      And  to  coin  money,  n.  97. 
BILLS  of  credit.    Not"  to  be  emitted  by  Congress,  under  the  Con 

federation,  without  the  consent  of  iiine.  States,  Art  IX. 

p.  18.   What,  assumed  by  the  Confederation,  Art.  XI  I.  p.  19. 
BINGHAM,  WILLIAM.     Presiding  officer  of  the  Senate,  n.  38,  p.  78. 
BLAIR,  JOHN.    Deputy  from   Virginia.     Signed  this  Constitution, 

pp.  42,  252. 
BLESSINGS  of  liberty,  to  ourselves  and  posterity.  Preamble  .....  22,51 

Defined,  n.  12. 


304 


INDEX. 


Art.    sec.     cl.         pp. 

BLOOD.    No  attainder  of  treason  shall  work  corruption  of  blood  or 

forfeiture,  except  during  the  life  of  the  person  attainted  3        3        2        88, 213 

Corruption  of  blood  defined,  n.  217. 

BLOUNT,  WILLIAM.  Deputy  from  North  Carolina.  Signed  this  Con 
stitution,  pp.  42,  252.  Expelled  from  the  Senate,  n.  42. 
Tried  on  impeachment,  n.  89.  His  offense,  n.  194.  Dis 
missed  for  want  of  jurisdiction,  n.  194. 

BOND  given  to  "fill  up  avacancv"  does  not  cover  matters  after 
nominat'on  and  confirmation,  n.  186. 

BORROW  money.     Congress  shall  have  power  to  borrow  money  on 

the  credit  of  the  United  States 182        28,103 

How  it  originally  read.  n.  83.  Authorizes  bills  of  credit, 
n.  84.  And  to  issue  treasury  notes  and  to  make  them 
legal  tenders,  n.  84.  That  subject  discussed,  Id.  The 
sums  borrowed  and  owing,  n.  72.  The  treasury  notes  an 
equivalent  of  coin,  n.  84,  p.  105.  Money  defined,  n.  98. 
(See  Money,  notes  97-100.) 

BOTTND.    Persons  bound  to  service  for  a  term  of  years,  included  in 

representative  numbers 128          23,67 

See  full  notes  upon,  notes  226-228. 

BOYD,  LYNN.    Speaker  of  the  House,  n.  26,  p.  78. 

BRADFORD,  WILLIAM.     Presiding  officer  of  the  Senate,  p.  78. 

BRADLEY,  STEPHEN  R.  Presiding  officer  of  the  Senate,  n.  38, 
p.  79. 

BRAXTON,  CARTER,  of  Virginia.    Signed  the  Dec.  of  Ind.  p.  8. 

BREACH  of  the  peace.    For  a  breach  of  the  peace,  a  senator  or 

representative  may  be  arrested 1        6        1          26,88 

For  any  indictable  offense,  n.  56. 

BREARLEY,  DAVID.  Deputy  from  New  Jersey.  Signed  this  Consti 
tution,  pp.  42,  252. 

BRECKINRIDGE,  JOHN  C.   Vice-President,  n.  37,  p.  78. 

BRIBERY.  All  civil  officers  shall  be  removed  from  office  on  im 
peachment  for,  and  conviction  of,  bribery,  &c 2  4  1  86, 185 

Bribery  defined,  n.  193. 

BRIDGES.  A  charter  for  is  a  contract,  n.  154,  p.  156.  A  railroad 
bridge  is  not  a  bridge  within  the  statutes  of  1790,  Id. 

The  power  of  Congress  to  build,  is  not  found  in  the 
Constitution.  It  exists  in  the  States,  n.  89.  But  Congress 
may  regulate  those  over  navigable  waters,  n.  89,  p.  108.  108 

BRIGADIKR-GENERAL.  Ten  in  the  army,  n.  124.  Not  less  than  a 
Brigadier  to  be  assigned  to  command  the  Districts  in  the 
rebel  States,  n.  276,  p.  282,  §  2. 

BRIGHT,  JESSK  D.  Presiding  officer  of  the  Senate,  n.  38,  p.  81.  Ex 
pelled  from  the  Senate,  n.  50. 

BROOM,  JACOB.  Deputy  from  Delaware.  Signed  this  Constitution, 
pp.  42,  252. 

BROWN,  ALBERT  G.    Expelled  from  the  Senate,  n.  50. 

BROWN,  JOHN.     Presiding  officer  of  the  Senate,  n.  38,  p.  79. 

BUCHANAN,  JAMES.     President,  n.  166. 

BUILDINGS.  Congress  shall  have  power  to  exercise  exclusive 
legislation  over  needful  buildings  in  places  purchased  by 

the  consent  of  the  legislatures  of  the   States 1        8      17        80,136 

This  includes  the  power  of  taxation,  n.  36.  And  exclusive 
jurisdiction.  Id.  But  the  title  must  be  acquired  with  tho 
consent  of  the  State,  n.  137. 

BURR,  AARON.    Vice-President,  n.  87. 

BUSINESS.     A  majority  of  each  house  shall  constitute  a  quorum  to 

do  business 1        5        1          25,88 

BUTLER,  PIKRCK.  Deputy  from  South  Carolina.  Signed  this  Con 
stitution,  pp.  42,  252. 

CALHOUN,  JOHN  C.    Vice-President.  n.  3L 

CALIFORNIA.  Qualifications  of  electors,  n.  17.  Three  representa 
tives,  by  census  of  1860,  n.  24,  p.  6S  ;  population  of,  through 
each  decade,  pp.  69-71.  Assigned  to  ninth  judicial  cir 
cuit,  n.  197.  Effect  of  purchase  upon  citizenship,  n.  220. 
Admitted  into  the  Union,  n.  230.  Ratified  the  18th  amend 
ment,  n.  274 ;  and  failure  to  act  on  the  14th,  n.  275. 


INDEX.  305 

Art.  sec.    cl.  pp. 

CAMPBELL,  JOHN  A.  One  of  the  Judges  of  the  Supreme  Court, 
n.  197. 

CANADA  might  be  admitted  into  the  Union  of  the  Confederation, 
Art.  of  Confederation,  xi.  p.  19. 

CANDIDATES  for  the  Presidency,  spirit  of  the  Constitution 
changed  as  to,  n.  286. 

CAPACITY  of  measures  for  liquids,  n.  102,  p.  118,  §  2. 

CAPITAL  crime.  No  person  shall  be  held  to  answer  for  a  capital 
or  otherwise  infamous  crime,  unless  on  a  presentment  or 
indictment  of  a  grand  jury,  except  in  cases  arising  in  the 
land  or  naval  forces,  or  in  the  militia,  when  in  actual  ser 
vice  in  time  of  war  or  public  danger.  Amendments 5  44,258 

"  Person  "  excluded  slaves.  Presentment  or  indictment 
applies  to  all  offenses  against  the  United  States.  Pre 
sentment,  indictment,  and  grand  jury,  defined,  n.  253. 
The  exception  denned  and  discussed,  n.  254.  Twice  in 
jeopardy  defined  and  discussed,  n.  255.  Witness  against 
himself  would  be  contrary  to  justice,  n.  257.  "Without 
due  process  of  law,"  fully  defined  and  discussed,  n.  257. 
Piracy  is  a  capital  offense,  n.  111.  Is  in  restraint  of  legis 
lative  power,  Id.  n.  257. 

CAPITATION  tax.  No  capitation  or  other  direct  tax  shall  be  laid, 
unless  in  proportion  to  the  census  or  enumeration  herein 
before  directed  to  be  taken 194  81,149 

Capitation  defined,  n.  144.  See  also  n.  22.  Direct  taxes 
must  be  by  the  rule  of  apportionment,  notes  22, 144.  What 
are  direct  taxes,  Id. 

CAPITATION  tax.    No  amendment  shall  be  made  prior  to  1808  to 

affect  the  preceding  clause 5  40,  246 

CAPTAIN.     A  rank  in  the  army,  n.  124.     In  the  navy,  n.  128. 

CAPTURES.  Congress  shall  have  power  to  declare  war,  to  grant 
letters  of  marque  and  reprisal,  and  make  rules  concerning 
captures  on  land  and  water 1  8  11  29,127 

CAPTURES  on  land  and  water   under  the  Confederation,  Art.  IX.  14 

p.  14.     See  notes  117-121. 

CARE.    The  President  shall  take  care  that  the  laws  be  faithfully 

executed 2        3  36,185 

The  reason  of  this  power  explained,  n.  189. 

CARROLL,  CHARLES,  of  Maryland.  Signed  the  Dec.  of  Ind.  p.  7; 
and  the  Articles  of  Confederation,  p.  21. 

CARROLL,  DANIEL.  Deputy  from  Maryland.  Signed  Articles  of 
Confederation,  p.  21 ;  and  this  Constitution,  pp.  42,  252. 

CATHOLIC  CHURCH.  Keduced  from  the  established  church  in 
Texas,  n.  245. 

CATRON,  JOHN.  One  of  the  Associate  Justices  of  the  Supreme 
Court  of  the  United  States,  n.  197,  p.  193. 

CASES  to  which  the  judicial  power  shall  extend.    (See  Judicial 

Power.) 821       87,194 

When  a  case  arises,  notes  199,  201.  Defined,  Id.  Cases  in 
equity,  n.  200.  AftVctins  ambassadors,  202.  In  admiralty 
(see  Admiralty),  n.  202.  Where  the  United  States  is  a 
party,  204.  Between  States,  205.  Between  a  State  and 
citizens  of  another  State  205a.  Between  citizens  of  dif 
ferent  States,  206.  Between  land  grants  of  different 
States,  207.  Between  a  State  and  citizens,  208.  Between 
a  State  and  aliens,  or  between  aliens,  &c.,  209.  The  court 
has  not  jurisdiction  of  every  case.  210. 

CAFSE.  No  warrant  shall  issue  but  upon  probable  cause.  Amend 
ments 4  44,257 

Must  be  by  authority  of  law,  n.  251.  Warrant  defined, 
n.  252. 

CENSUS  to  be  taken  within  three  years  after  first  meeting  of  Con 
gress,  and  every  ten  years  thereafter,  in  such  manner  as 

they  shall  by  law  direct 1        2        3          23,67 

Numbers  under  each,  n.  24,  pp.  68-71.  Ratio  each  year, 
n.  21.  Number  of  representatives  under,  in  1860,  n.  24, 
p.  68.  Defined  ;  has  reference  to  numbers,  n.  145. 

CENSUS.    No  capitation  or  other  direct  tax  shall  be  laid,  unless  in 


306 


INDEX. 


proportion  to  the  census   or   enumeration    hereinbefore 
directed  to  be  taken 

CENSUS.     No  amendment  shall  be  made  prior  to  1S08  to  affect  the 

preceding  clause       5 

CENTARE.     One  square  meter,  n.  102,  p.  117,  §  2. 

CENTIGRAM.     A  measure  of  weight,  n.  102,  p.  118,  §  2. 

CENTILITER.    A  measure  of  capacity,  n.  102,  p.  118.  §  2. 

CKNTIMETKR.     A  measure  of  length,  n.  102,  p.  117,  §2. 

CESSION.  On  the  cession  by  particular  States  of  a  district  (not 
exceeding  ten  miles  square),  and  the  acceptance  of  Con 
gress,  it  may  become  the  seat  of  government  of  the 

United  States 1 

The  District  of  Columbia  was  ceded,  n.  136.  The  in 
habitants  are  citizens,  and  taxable,  notes  136,  137. 

CHARGE  of  treason.  A  person  charged  in  any  State  with  treason, 
Ac.,  who  may  flee  from  justice,  to  be  delivered  up  and 

removed  to  the  State  having  jurisdiction  of  the  crime 4 

"Person"  and  "flee"  defined,  n.  223.  The  executive 
cannot  go  behind  the  demand,  n.  223.  He  cannot  be 
coerced  by  the  Supreme  Court,  Id.  The  requisites  of  the 
demand,  Id.  On  what  evidence  shall  be  delivered  up,  Id. 

CHARTERS.  For  taking  away  our,  and  abolishing  our  laws.  Dec. 
of  Ind.  p.  4. 

CHASE,  SALMON  P.    Chief-Justice  of  the  Supreme  Court,  n.  197. 

CHASE,  SAMUEL,  of  Maryland.  Signed  the  Dec.  of  Ind.  p.  7.  One 
of  the  Associate  Justices,  n.  197,  p.  193.  Impeached;  oath 
on  trial  of,  n.  39.  History  of  his  trial,  n.  194,  p.  188. 

CHEVRS,  LANGDON.  Speaker  of  House  of  .Representatives,  n.  26, 
p.  73. 

CHIEF-JUSTICE  shall  preside  when  the  President  of  the  United 

States  is  tried  on  an  impeachment  by  the  Senate,  the 1 

(See  n.  39.) 
UEF-JUSTICES.    List  and  ages  of,  of  the  Supreme  Court,  n.  197. 

CHOOSING  senators  denned,  n.  41. 

CHOSF.N.    (See  Elected.  &<;.,  n.  163.)    Amendments 12 

CHUBCH.    Congress  shall  make  no  law  respecting  the  establishment 

of  religion.    Amendment    1 

This  cut  down  any  established  church,  n.  245. 

CHUSE.     (See  Elect,  notes  41,  168.) 

CIRCUITS  of  the  United  States  Courts  defined  and  judges  allotted, 
11.197,  pp.  191,192. 

CITIZEN  of  United  States.  No  person  shall  be  a  senator  in  Con 
gress  who  has  not  been  nine  years  a  citizen  of  the  United 

States 1 

Shields  rejected  for  want  of  nine  years'  naturalization, 
n.  35.  (See  n.  46.) 

CITIZEN.     If  not  in  military  service,  guarantied  the  right  of  trial 


Art  sec. 
1        9 


by  jury,  n.  260. 

*.     No 


CITIZEN.  No  person  except  a  natural  born  citizen,  or  a  citizen  of 
the  United  States  at  the  time  of  the  adoption  of  the  Con 
stitution,  shall  be  eligible  to  the  office  of  President 

Not  made  by  law,  natural  members  of  the  body  politic, 
n.  169.  The  Constitution  does  not  make  the  citizens — it 
is  made  by  them,  n.  169.  Or  a  citizen  of  the  United  States 
discussed  and  denned,  n.  170.  Citizen  denned,  n.  274.  Citi 
zen  made  by  naturalization,  n.  93. 

CITIZENS.  The  judicial  power  shall  extend  to  controversies  be 
tween  a  State  and  citizens  of  another  State;  between 
citizens  of  different  States;  between  citizens  of  the  same 
State  claiming  lands  under  grants  of  different  States  ;  and 
between  a  State,  or  the  citizens  thereof,  and  foreign  States, 

citizens,  or  subjects 

(See  n.  274.)  A  citizen  cannot  sue  a  State,  n.  205a.  They 
must  be  citizens  of  the  United  States,  n.  206.  The  situa 
tion  rather  than  character  gives  the  jurisdiction,  Id.  Does 
not  embrace  citizens  of  Territories  and  District  of  Colum 
bia.  It  is  enough  that  the  grants  were  made  by  different 
States,  Id.  The  jurisdiction  depends  upon  the  character 


pp. 

81, 149 
40,246 


8      17       30, 136 


38,229 


25,81 

46,164 
43,254 


24,77 


1        5       84, 167 


1        37, 194 


INDEX. 


of  the  real  parties,  n.  208.     Indian  tribes  not  a  State,  Id. 
The  annexation  of  Texas  made  citizens  of  all.  n.  209. 
CITIZENS.    The  citizens  of  each  State  shall  be  entitled  to  all  privi 
leges  and  immunities  of  citizens  in  the  several  States 

This  is  copied  from  the  fourth  Article  of  the  Confedera 
tion,  p.  10.  There  is  no  authoritative  definition  of  citizen, 
notes 220,  274.  Those  who  became  such  by  the  Revolution, 
n.  220.  §  (n  274,  p.  273,)  1  ;  the  descendants  of  such,  Id. 
§2;  of  Louisiana  Territory,  Id.§  3;  of  Florida,  Id.  §  4; 
of  Texas.  Id.  §  5;  of  California.  Id.  §  6;  of  Arizona,  Id. 
§7;  naturalized  by  special  acts,  Id.  §  8;  the  late  slaves, 
Id.  §  9,  n.  274;  the  naturalized,  Id.  §  10;  certain  Indians, 
Id.  §  11;  corporations,  Id.  §  12;  natural  born  and  natural 
ized,  Id.  §  12,  and  n.  74.  Privileges  and  immunities  de- 
'ined,  n.  221.  The  power  of  the  States  over  the  sub- 
ct,  Id.  The  rights  are  fundamental,  Id.  p.  226. 
he  question  of  those  of  African  descent  discussed,  n. 
ct  of  the  guaranty,  n. 
law  of  his  State  into 


Art.  sec.    cl. 


307 

PP. 


IS 

221.  p'p.  227,  228,  and  n.  274.    The  object  of  the  srnaranty,  n. 

222.  The  citizen  does  not  carry  the  la 
another  State,  n.  222. 


CITIZENS.  The  judicial  power  of  the  United  States  shall  not  be 
construed  to  extend  to.  any  suit  in  law  or  equity  com 
menced  or  prosecuted  against  one  of  the  United  States  by 
citizens  of  another  State,  or  by  citizens  or  subjects  of  any 

foreign  State.     Amendments 11 

The  reason  of  this  amendment,  n.  270.  Its  effect  was  to 
dismiss  all  pending  suits,  Id. 

CITIZENS.  All  persons  born  or  naturalized  in  the  United  States, 
and  subject  to  the  jurisdiction  thereof,  are  citizen!*  of  the 
United  States  and  of  the  State  wherein  they  reside.  No 
State  shall  make  or  enforce  any  law  which  shall  abridge 
the  privileges  or  immunities  of  citizens  of*  the  United 
States;  nor  shall  any  State  deprive  any  person  of  life, 
liberty,  or  property,  without  due  process  of  law,  nor  deny 
to  any  person  within  iis  jurisdiction  the  equal  protection 

of  the  laws.    Amendments 14        1 

Defined,  n.  274.  When  the  right  to  vote  at  any  election, 
•fee.,  is  denied  to  any  of  the.  (See  Representatives.) 
Amendments 14  2 

CITIZENS.  Used  synonymously  with  '"people,"  n.  6,  p.  54.  Negroes 
not  included,  Id.  p.  55;  but,  they  are  by  the  Civil  Rights 
Bill,  notes  6,  274.  None  but  allowed  to  vote  in  the  Confeder 
ate  States,  n.  16,  p.  59.  To  be,  a  necessary  qualification  in 
m;my  States  of  the  Union,  n.  16,  pp.  59-64.  The  eleven 
different  classifications  of.  n.  220. 

CITIZENS.  Commerce  with  foreign  nations  means  commerce  be 
tween  our  citizens  airt  foreign  citizens,  n.  8T. 

CITIZENSHIP  does  not  give  the  right  to  vote,  nor  the  want  of  it 
invalidate  it ;  does  not  depend  upon  the  legal  capacity  to 
hold  office;  political  rights  in  contradistinction  to  poli 
tical  powers,  n.  18.  A  necessary  qualification  for  a  repre 
sentative,  n.  19.  Senator,  n.  35.  President,  n.  169.  By 
naturalization;  extent  of,  notes  93,  274.  The  effect  of 
emancipation  and  the  Civil  Rights  Bill  upon,  u.  274. 

CIVIL  office.     (See  Office.) 

CIVIL  officers.  All  civil  officers  of  the  United  States  shall  be 
removed  from  office  on  impeachment  for,  and  conviction 
of,  treason,  bribery,  or  other  high  crimes  and  mis 
demeanors 2  4 

Who  are  civil  officers;  strictly  confined  to  ofiices  of  the 
United  States — not  members  of  Congress,  n.  191.  Treason 
and  briber}'  defined,  n.  192.  High  crimes  und  misdemean 
ors  defined,  notes  193,  194.  The  impeachments  discussed, 
n.  194.  For  what  it  may  and  may  not  be  had.  Impeach 
ment  of  the  President,  n.  194.  See  Tenure  of  Office,  n.  184. 

CLA.IM.     Fugitive  slaves  shall  be  delivered  up  on  claim  of  the 

party  to  whom  they  belong,  &c 4        V 

(See  Fugitives  and  Slaves.) 


46, 269 


48,  279 
48,279 


36, 185 


89,282 


308 


ITTDEX. 


CLAIMS.    The  Congress  shall  have  power  to  dispose  of  and  make 
all  needful  rules  and  regulations  respecting  the  territory 
or  other  property  belonging  to  the  United  States;  and 
nothing  in  this  Constitution  shall  be  so  construed  as  to 
prejudice  any  claims  of  the  United  States,  or  of  any  par 
ticular  State  ............................................ 

This  subject  fully  discussed  (see  Territories'),  notes 
231,  232.  The  claims  of  Georgia  and  North  Carolina  were 
referred  to,  n.  222. 

CLASSES.    The  senators  shall  be  divided  as  equally  as  may  be  into 
three  classes.     (See  Senators.)  .......................... 

The  classification,  whero  found,  and  its  objects,  n.  34. 

CLARK,  ABRAHAM,  of  New  Jersey.    Signed  the  Dec.  of  Ind.  p.  7. 

CLARK,  DANIEL.     Presiding  officer  of  the  Senate,  n.  38,  p.  81. 

CLAY,  HENRY.     Speaker  of  the  House  six  years,  n.  26,  p.  73. 

CLEAR.    Vessels  bound  to  or  from  one  State  shall  not  be  obliged 
to  enter,  clear,  or  pay  duties  in  another  .................. 

This  clause  has  reference  to  the  coasting  trade,  n.  148... 

CLINGAN,  WILLIAM,  of  Pennsylvania.  Signed  Articles  of  Confed 
eration.  p.  21. 

CLINTON,  GEORGE.    Vice-President,  n.  37. 

CLYMER,  GEORGE.  Deputy  from  Pennsylvania.  Signed  the  Dec.  of 
Ind.  p.  7  ;  and  this  Constitution,  pp.  42,  252. 

COBB,  HOWELL.    Speaker  of  House  of  Representatives,  n.  26.  p.  73. 

Com  money.     Congress  shall  have  power  to  coin  money,  regulate 
the  value  thereof,  and  of  foreign  coin  .................... 

Coin  defined,  n.  97.  Money  defined,  n.  98.  Substitute 
for,  n.  98.  Counterfeiting,  n.  98.  As  a  legal  tender  dis 
cussed,  notes,  83,  97,  98,  99,  100,  155. 

COIN  money.     No  State  shall  coin  money  ........................ 

For  remarks  on  this  see  n.  152,  and  marginal  figures 
there. 

COIN.     (See  Counterfeiting.)  .................................... 

Com.  No  State  shall  make  any  thing  but  gold  and  silver  coin  a 

" 


Art  sec.    cl. 


pp. 


tender  inpayment  of  debts 

But  Congress  may,  notes  83,  84,  97-100,  155. 
COLFAX,  SCHUYLER.     Speaker  of  the  House,  n.  26,  p.  73. 
COLLINS,  JOHN,  of  Rhode  Island.    Signed  Articles  of  Confedera 

tion,  p.  21. 
COLLECT  duties.    Congress  shall  have  power  to  lay  and  collect 

duties,  taxes,  imposts,  and  excises  .......................       1 

The  full  extent  of  this  power  considered  (See  Congress, 

notes,  72  to  81),  notes  22,  144. 

COLLECTOR  cannot  hold  the  office  of  an  inspector,  n.  68. 
COMMANDER-IN-CHIEF.     The   President  shall   be  commander-in- 

chief  of  the  army  and  navy  of  the  United  States,  and  of 

the  militia  of  the  several  States,  when  called  into  the 

actual  service  of  the  United  States  ......................       2 

Why  this  power  given  to  one  head  ;  need  not  command 

in  person,  n.  175.    When  his  power  over  the  militia  com 

mences,  n.  175. 
COMMERCE.     Congress  shall  have  power  to  regulate  commerce  with 

foreign  nations,  and  among  the  several  States,  and  with 

the  Indian  tribes  .......................................      1 

To    regulate    and    commerce    defined,   n.   86.      It  In 

cludes  navigation,  notes  86,  87  ;   and  certain  railroads,  n. 

274.     "With  foreign  nations"  defined,  n.  87,  pp.  105,  106. 

State  license  and  other  laws  unconstitutional,  notes  88,  89, 

144.    What  navigable  waters  are  public  property,  n.  89. 

And  railroads,  n.  274.  The  concurrent  powers  of  the  States, 

n.  89,  p.  108,  n.  144.    The  power  among  the  States,  n.  90. 

And  with  the  Indian  tribes,  defined  and  discussed,  n.  91. 

Not  subject  to  State  taxation,  n.  91,  p.  110.    The  Indian 

relations  defined,  n.  92. 
COMMERCE.    No  preference  shall  be  given  by  any  regulations  of 

commerce  or  revenue   to  the   ports  of  one  State  over 

those  of  another;  nor  shall  vessels,  bound  to  or  from  one 

State,  be  obliged  to  enter,  clear,  or  pay  duties  in  another..      1 


2       89,233 


24,76 


6       81, 150 


29,114 


10 


86 


1      10 


81,153 

29, 118 
81,153 


28,94 


85,271 


28,105 


81,  150 


INDEX. 


Art.  sec.    cl. 


Preference  defined,  n.  147.    Inspection  laws  retained,  Id. 
Vessels  bound  defined,  148. 
COMMEP.CE,  inter-State.    Was  intended  to  be  as  free  as  possible, 

n.  162. 

COMMISSIONS.  The  President  shall  have  power  to  fill  all  vacan 
cies  that  may  happen  during  the  recess  of  the  Senate,  by 
granting  commissions,  which  shall  expire  at  the  end  of 

their  next  session 2        2        3 

How  vacancies  may  happen,  n.  185.   If  they  occur  during 
the   recess,    Id.    If  the  Senate   do  not  ratify,  the   office 
remains  in  abeyance,  n.  184,  §  3. 
COMMISSIONS.    The  President  shall  commission  all  the  officers  of 

the  United  States 231 

When  those  rejected  appointments  expire,  n.  186. 
Do  not  embrace  matters  after  nomination,  n.  196. 
The  President  shall  commission  all  officers;  this  is  not 
appointing  them,  n.  190. 

COMMITTEE  of  the  States.  Congress  might  appoint  a;  their  pow 
ers  defined.  Confederation,  Art.  IX 

COMMON  defense,  &c.     The  Constitution  established  to  provide  for 

the  common  defense,  &c.     Preamble 

COMMON  defense.     Congress  shall  have  power  to  provide  for  the 

common  defense 1        8        1 

Preamble  defined,  n.  10.  Omitted  from  the  Confederate 
preamble,  n.  5.  lietained  among  powers,  Id.  The  power 
discussed,  n.  79. 

COMMON  law.  In  suits  at  common  law,  where  the  value  in  con 
troversy  shall  exceed  twenty  dollars,  the  right  of  trial  by 
jury  shall  be  preserved  ;  and  no  fact  tried  by  a  jury  shall 
be  otherwise  re-examined  in  any  court  of  the  United 
States,  than  according  to  the  rules  of  the  common  law. 

Amendments 7 

Common  law  is  used  in  contradistinction  to  equity  and 
admiralty,  notes  200,  263.  Compared  with  other  clauses, 
denned,  n.  263.  Relates  to  proceedings  in  the  federal  courts 
only ;  the  prohibition  defined  and  discussed,  n.  263, 
Christianity  is  not  a  part  of  the,  n.  245. 

COMPACT.  No  State  shall,  without  the  consent  of  Congress,  enter 
into  any  agreement  or  compact  with  another  State  or  a 

foreign  power 1      10        3 

COMPACT.  The  Constitution  created  a  government,  not  a  mere 
compact,  Pref.  p.  viii.  notes  2,  4. 

Compact  or  agreement  defined  and  discussed,  n.  164. 
COMPEL  the  attendance  of  absent  members.     A  smaller  number 
than  a  quorum  of  each  house  may  compel  the  attendance 
of  absent  members,  in  such  manner  and  under  such  pen 
alties  as  each   house  may  provide 5        1 

COMPENSATION.  The  senators  and  representatives  shall  receive 
a  compensation  for  their  services,  to  be  ascertained  by  law, 

and  paid  out  of  the  Treasury  of  the  United  States 161 

Of  members,  n.  53.    How  fixed,  n.  54. 

COMPENSATION  of  the  President  of  the  United  States.  The  Presi 
dent  shall,  at  stated  times,  receive  for  his  services  a  com 
pensation  which  shall  be  neither  increased  nor  diminished 
during  the  period  for  which  he  shall  have  been  elected, 
and  he  shall  not  receive  within  that  period  any  other 

emolument  from  the  United  States,  or  any  of  them 2        1        7 

Fixed  at  $25,000  per  annum,  n.  173. 

COMPENSATION.  The  judges,  both  of  the  Supreme  and  inferior 
courts,  shall  hold  their  offices  during  good  behavior,  and 
shall,  at  stated  times,  receive  for  their  services  a  compen 
sation  which  shall  not  be  diminished  during  their  contin 
uance  in  office 3  1 

Fixed  by  statute,  n.  198. 
COMPENSATION.    Nor  shall  private  property  be  taken  for  public 

use  without  just  compensation.     Amendments 5 

What  is  just  compensation,  and  how  it  must  be  made, 
defined  and  discussed,  n.  259.  Public  use  defined,  n.  258. 


309 

PP. 

36,182 
36,183 


17,18 
22,51 

28,94 


82, 161 

25,84 

26,88 


36, 189 
44,258 


310 


INDEX. 


Art.  sec.    cl. 

COMPULSORY  process.  In  all  criminal  prosecutions  the  accused  to 
have,  compulsory  process  for  obtaining  witnesses  in  his 

favor.     Amendments 6 

Compulsory  process  defined,  n.  264.  Why  the  assistance 
of  counsel,  n.  265. 

CONCUR.    The  Senate  may  propose  and  concur  in  amendments  to 

revenue  bills,  <fcc 1        7        1 

The  reason,  n.  64.     Revenue  defined,  n.  65. 

CONCURRENCE.  No  person  shall  be  convicted  on  an  impeachment 
without  the  concurrence  of  two-thirds  of  the  senators 

present 1        3        6 

(See  n.  39.) 

CONCURRENCE.  Every  order,  resolution,  or  vote,  to  which  the 
concurrence  of  the  two  houses  may  be  necessary,  shall  be 

presented  to  the  President,  except,  &c 1        7        3 

Explained  ;  why  adjournment  is  excepted,  n.  70. 

CONFEDERACY.  "The,  style  of  this  shall  be  'The  United  States 
of  America.1"  Was  a  firm  league,  of  friendship.  (See 
Articles  of  Confederation.  Art.  I.  p.  9.) 

CONFEDERATION.     Articles  of,  agreed  to,  notes  8,  9. 

CONFEDERATION.     No  State  shall  enter  into  any  confederation....       1      10        1 

Because  it  is  a  national  power,  n.  152.  (See  Agree 
ment.) 

CONFEDERATION.  All  debts  contracted  or  engagements  entered 
into  before  the  adoption  of  this  Constitution,  shall  be  as 
valid  against  the  United  States  under  this  Constitution  as 

under  the  Confederation 6  1 

This  was  but  asserting  a  general  principle,  n.  237. 

CONFEDERATE  States.  Extracts  from  Constitution  of,  n.  5,  p.  38; 
n.  70,  pp.  101,  202 ;  n.  149,  p.  151.  Was  not  a  de  facto  gov 
ernment,  n.  215. 

CONFESSION  in  open  court.  No  person  shall  be  convicted  of  trea 
son  unless  on  the  testimony  of  two  witnesses  to  the  same 

overt  act,  or  on  confession  in  open  court 381 

(See  Treason,  notes  215,  216.) 

CONFISCATIONS  under  foreign  treaties  are  political  questions,  n. 
199,  p.  195.  Under  the  laws  of  the  Confederate  States, 
void,  n.  213. 

CONFRONTED.  In  all  criminal  prosecutions  the  accused  shall  enjoy 
the  right  to  be  confronted  with  the  witnesses  against  him. 

Amendments 6 

The  accused  defined,  n.  260.  The  reason  of  witnesses, 
261. 

CONGRESS,  United  States.     All  legislative  powers  herein  granted 

shall  be  vested  in  Congress 1        1 

The  legislative  power  defined,  n.  14.  Distinguished 
from  the  executive  and  judicial,  notes  165, 199,  274.  Con 
gress  defined  and  discussed,  n.  15. 

CONGRESS,  United  States.    Shall  consist  of  a  Senate  and  House  of 

Representatives 1        1 

CONGRESS,  members  of.  (See  Senators,  Representatives.)  Notes 
16-46. 

CONGRESS  shall  by  law  direct  the  manner  in  which  the  census  or 

enumeration  of  the  people  shall  he  made 1         2        3 

For  the  numbers,  see  n.  24.     Census  defined,  n.  144. 

CONGRESS.  The  first  Congress  to  consist  of  65  members,  from  the 
several  States  as  mentioned  herein.  (See  Representa 
tives.) 1  2  3 

For  the  numbers  under  the  census  of  1860,  see  n.  24, 
pp.  68,  69. 

CONGRESS.  The  time,  places,  and  manner  of  holding  elections  for 
senators  and  representatives,  si  all  be  prescribed  in  each 
State  by  the  legislature  thereof;  but  the  Congress  may, 
at  any  time,  by  law,  make  or  alter  such  regulations,  except 

as  to  the  places  of  choosing  senators 141 

How  far  this  power  has  been  exercised,  n.  41.  It  cannot 
give  the  right  to  say  who  shall  vote,  n.  41. 

CONGRESS  shall  assemble  at  least  once  in  every  year,  and  such 


INDEX.  311 

Art.  sec.     cl.  pp. 

meeting  shall  he  on  the  first  Monday  in  December,  unless 

they  shall  by  law  appoint  a  different  day 142          25,83 

The  sessions  defined  by  the  law  ot'lbGT,  n.  43. 
CONORKSS  of  the  United  States:— 

Each  house  shall  be  the  judge  of  the  elections,   returns,  and 

qualifications  of  its  owe  members,  and  a  majority  of  each 

shall  constitute  a  quorum  to  do  business;  but  n  smaller 

number  may  adjourn  from  day  to  day,  and  may  be  author 
ized  to  compel  the  attendance  of  absent  members,  in  such 

manner  and   under   such   penalties  as    each  house   may 

provide. 1        5        1          25,84 

The  elections,  returns,  and  qualifications  defined,  notes 

44,  45,  46,  with  reference  to  notes  19,  35,  and  41.     The  dif 
ferences  betwee  i   the  President  and  Congress  presented, 

n.  46.     Superadded  qualifications,  n.  46,  pp.  So,  86. 
Each  house  may  determine  the  rules  of  its  proceedings,  punish 

its  members  fin*  disorderly  behavior,  and,  with  the  concur 
rence  of  two-thirds,  expel  a  member. ... 152          26,86 

TLj  rules,  where  found,  n.  47.     This  trives  the  power  to 

punish  members  and   others  for  contempts,  n.  48.      S:tm 

Houston's  case,  n.  48.     Expulsion  defined,  n.  49.     Expul 
sion  lor  rebellion,  n.  50. 
Each  house  shall  keep  a  journal  of  its  proceedings,  and   from 

time  to  time  publish  the  same,  excepting  such  parts  as 

may,  in  their  judgment,  require  secrecy;  arid  the  yeas  and 

nays  of  the  members  of  either   house,  on  any  question, 

shall,  at  the  desire  of  one-fifth  of  those  present,  be  entered 

on  the  journal  ...  1        5        3          26,87 

The  object  of  the  journal,  and  yeas  and  nays,  n.  51. 
Neither  house,  during  the  session  of  Congress,  shall,  without 

the  consent  of  the  other,  adj  urn  for  mure  than  three  days, 

nor  to  any  other  place  than  that  in  which  the  two  houses 

shall  be  sitting 154          26,88 

The  reasons  of  this  rule,  n.  52. 
All  bills  for  raising  revenue  shall  originate  in  the  House  of 

^Representatives ;  but  the  Senate  may  propose  or  concur 

with  amendments,  as  on  other  bills  1        7        1          27,90 

The   present  compensation   and   reason,  n.  53.      Why 

ascertained  by  law,  n.  54      Privilege  defined,  n.  55.     For 

what  otfenses  not  privileged,  n.  56.     To  whom  and  how  long 

the  privilege  from  arre.st  extends,  n.  57.     The  consequences 

of  arrest,  n.  58.     When  the  privilege  commences,  n.  59. 

Contestants  entitled  to  it,  n.  60.     Freedom  of  debate,  n.  61. 

To  what  confined,  n.  61.  p.  90. 

Every  bill  which  shall  have  passed  the  House  of  Representa 
tives  and  the  Seriate,  shall,  before  it  become  a  law,  be  pre 
sented  to  the  President  of  the  United  States ;  if  he  approve, 

he  shall  sign  it;  but  if  n^t,  he  shall  return  it,  with  his 

objections,  to  that  house  in  which  it  shall  have  originated, 

who  shall  enter  the  objections  at  large  on  their  journal, 

and  proceed  to  reconsider  it 172 

Bills  take  effect  from  approval,  n.  66.     The  negative  is 

the  veto  power,  n.  67,  p.  92.    Veto  defined;  its  objects  and 

history,   n.   67,   pp.  92,  93.     President  Johnson's   use   of 

it,  Id.' 
If,  after  such  reconsideration,  two-thirds  of  that  house  shall 

agree  to  pass  the  bill,  it  shall  be  sent,  together  with  the 

objections,  to  the  other  house,  by  which   it  shall  likewise 

be  reconsidered,  and  if  approved  by  two-thirds  of   that 

house,  it  shall  become  a  law 172          28,93 

Two-thirds  of  a  quorum  sufficient,  n.  68. 

But,  in  all  such  cases,  the  votes  of  both  houses  shall  be  deter 
mined  by  yeas  and  nays,  and  the  names  of  the  persons 

Toting  for  and  against  the  bill,  shall  be  entered  on  the 

journal  of  each  house,  respectively 172          28,93 

If  any  bill  shall  not  be  returned  by  the  President  within  ten 

days  (Sundays  excepted)  after  it  shall  have  been  presented 

to  him,  the  same  shall  be  a  law,  in  like  manner  as  if  he 


312 


INDEX. 


had  signed  it,  unless  the  Congress,  by  their  adjournment, 
prevent  its  return,  in  which  case  it  shall  not  be  a  law 1 

The  President  must  have  ten  clear  days,  n.  69. 
Every  order,  resolution,  or  vote,  to  which  the  concurrence  of 
the  Senate  and  House  of  Representatives  may  be  neces 
sary  (except  on  a  question  of  adjournment),  shall  be  pre 
sented  to  the  President  of  the  United  States,  and,  before 
the  same  shall  take  effect,  shall  be  approved  by  him,  or, 
being  disapproved  by  him,  shall  be  repassed  by  two-thirds 
of  the  Senate  and  House  of  Representatives,  according  to 
the  rules  and  limitations  prescribed  in  the  case  of  a  bill. . .  1 

The  effect  of  joint  resolutions,  and  the  reason  of  thia 
rule,  n.  70. 

CONGRKSS   SHALL   HAVK    POWER  : — 

To  lay  and  collect  taxes,  duties,  imposts,  and  excises,  to  pay 
the  debts,  and  provide  for  the  common  defense  and 
general  welfare  of  the  United  States;  but  all  duties,  im 
posts,  and  excises  shall  be  uniform  throughout  the  United 

States 1 

Power  defined  and  discussed,  and  the  word  compared 
by  marginal  references,  n.  71.  Taxes  defined,  notes  22,  72, 
144,  which  notes  distinguish  direct  and  indirect.  The  ex 
tent  of  the  power,  n.  73.  Of  States  over  national  banks, 
n.  74.  Duties  defined,  n.  75.  Imposts  defined,  notes  75, 
144.  Excise  defined  and  discussed,  n.  77.  Debts  defined, 
n.  78,  p.  97.  The  amount  each  year,  from  the  foundation 
of  the  government,  n.  78,  pp.  97,  98.  The  debt,  Nov.  1, 
1867,  n.  78,  pp.  99,  100.  To  provide  for  the  common  de 
fense  defined,  notes  10,  78.  The  doctrines  of  the  different 
schools,  n.  79,  p.  101.  The  Confederate  States  Constitu 
tion.  n.  79,  pp.  101,  102.  And  general  welfare  defined, 
notes  11,  80.  Uniformity,  notes  22.  81,  144,  145. 

To  borrow  money  on  the  credit  of  the  United  States 1 

Each  term  defined,  notes  82,  83.  Under  what  laws 
treasury  notes  have  been  issued.  Money  and  legal  ten 
ders  defined  and  discussed,  notes  82,  83,  97, 98, 129, 155.  Ex 
amples  of  contracts  payable  in  treasury  notes,  n.  84,  pp. 
104,  105. 

To  regulate  commerce  with  foreign  nations,  and  among  the 

several  States,  and  with   the  Indian  tribes 1 

To  regulate  defined,  n.  85.  Commerce  defined,  n.  86.  With 
foreign  nation s  and  the  States  defined,  n.  106,  pp.  105,  106. 
The  laws  of  States  which  violate,  notes  88,  89.  Eminent  do 
main,  n.  89.  Extent  of  judicial  power  over  it,  n.  89.  Concur 
rent  powers  of  the  States,  n.  89,  p.  108.  The  power  as  to 
slaves,  p.  90.  Commerce  with  the  Indian  tribes,  n.  91.  Their 
ownership  of  soil,  n.  91.  With  the  tribes  defined,  n.  91, 
p.  110.  Indians  not  subject  to  internal  revenue  tux, 
p.  110.  The  subject  discussed,  n.  91,  pp.  110,  111.  The  re 
lations  of  the  tribes  defined,  n.  92. 

To  establish  an  uniform  rule  of  naturalization,  and  uniform 
laws  on  the  subject  of  bankruptcies  throughout  the  United 

States 1 

Naturalization  defined,  n.  93.  Carries  expatriation,  n. 
93.  The  subject  discussed,  n.  274.  Exclusive  in  Congress, 
Id.  Bankrupt  defined,  n.  94.  And  bankruptcy,  n.  95. 
The  power  of  the  States  over  the  subject,  n.  96. 

To  coin  money,  regulate  the  value  thereof,  and  of  foreign  coin ; 

and  fix  the  standard  of  weights  and  measures 1 

To  coin  and  money  defined,  notes  97,  98.  Is  it  the  only 
legal  tender  ?  notes  82,  83,  84,  97,  98,  155.  Coin  has  no 
pledge  of  redemption,  n.  98.  History  of  regulating  value, 
n.  99.  No  express  grant  of  power  to  make  cold  and  silver 
a  legal  tendt-r,  n.  100.  Intrinsic  value,  n.  100.  To  fix  de 
fined,  n.  101.  The  acts  of  Congress  on  weights  and 
measures,  n.  102,  pp.  116,  117,  118.  The  metric  system 
authorized,  n.  102,  p.  117,  §  1.  The  tables,  Id.  §  2.  Mea- 
Bures  of  length,  Id.  Of  surface,  Id.  Of  capacity,  Id.  p.  118. 


Art.    sec. 


pp. 


INDEX.  313 

Art.    sec.    cl.  pp. 

Of  weights,  n.  202,  p.  118.    A  ton,  n.  102,  pp.  116,  118. 

The  spirit  measure,  n.  102,  p.  116. 
To  provide  for  the  punishment  of  counterfeiting  the  securities 

and  current  coin  of  the  United  States 186        29,118 

To  establish  post-offices  and  post-roads 187       29,119 

To  establish,  defined  and  compared  with  the  word  else 
where,  n.  104 ;  as  in  notes  8,  13.  93,  94,  95,  195,  243.  245. 

Post-offices  defined,  and  their  history  and  present  stand 
ing  given,  n.  106.     Post-roads  defined,  n.  106. 
To  promote  the  progress  ot  science  and  useful  arts,  by  secur 
ing,   for   limited  times,   to    authors    and  inventors,  the 

exclusive  right   to  their  respective    writings    and   dis 
coveries 188        29,121 

To  promote,  and  every  word  and  phrase,  defined,  n.  107, 

pp.  121,  122.     Inventors  defined,  and  the  law  discussed, 

n.  108. 

To  constitute  tribunals  inferior  to  the  Supreme  Court 189        29,124 

To  constitute,  and  tribunals,  defined,  and  doctrine  stated, 

n.  109.    When  bound  by  State  decisions,  Id. 
To  define  and  punish  piracies  and  felonies  committed  on  the 

high  seas,  and  offenses  against  the  law  of  nations 1        8      10        29, 124 

"To   define"  defined,  n.  110.     To  punish  defined,  and 

death  punishment  stated,  n.  111.     Piracy  and  pirate  de 
fined,  n.  112.     Felony  defined  and  discussed,  11.  113.     High 

seas  defined,  n.  114.    Offenses  against  the  law  of  nations 

defined  and  discussed,  n.  115.    Law  of  nations  defined, 

n.  116. 
To  declare  war,  grant  letters  of  marque  and  reprisal,  and 

make  rules  concerning  captures  on  land  and  water 1        8      11        29, 127 

War,  civil  war,  and  our  forms  of  declaring,  defined  and 

given,  n.  117.    Gives  the  right  to  acquire  territory,  n.  118. 

Citizens  of  the   countries  at  war  are   personally  at  war, 

n.  118.    Their  disabilities,  n.  118.    The  effects  of  the  late 

rebellion,  n.  118.     Marauders  and  bushwhackers  not  pro 
tected,  n.  118,  p.  128.     Allegiance  during  civil  war,  n.  118, 
&129.     Gives  the  right  of  conscription,  notes  118,  121, 124. 
arque    and  reprisal  defined,   notes  119,  120,  121.     The 

power  under  the  Confederation,  Arts.  VI.,  VII.,  VIII., 

pp.  11-18. 
To  raise  and  support  armies;  but  no  appropriation  of  money 

to  that  use  shall  be  for  a  longer  term  than  two  years 1        8      12        29,130 

This  power  did  not  exist  in  Congress  under  the  Confed 
eration,  n.  122.    To  raise  and  support,  and  armies,  defined, 

123, 124, 125.    (See  Armies.) 

To  provide  and  maintain  a  navy 1        8      13        29, 132 

This  power  defined  and  discussed,  n.  127.    The  sovereign 

rights  on  public  ships,  n.  127,  p.  133.     Banks  in  the  navy, 

Id".    The  right  of  Habeas  Corpus  over  enlistments,  n.  141, 

p.  145. 
To  make  rules  for  the  government  and  regulation  of  the  land 

and  naval  forces 1        8      14        29,133 

For  where  these  rules  are  to  be  found,  see  n.  129. 
To  provide  for  calling  forth  the  militia  to  execute  the  laws  of 

the  Union,  suppress  insurrections,  and  repel  invasions  ...       1        8      15        29, 13-5 
Militia  defined,  n.  130,  and  the  laws  in  relation  to  calling 

them  out,  n.   130.    The  laws  to  be  executed,  notes  181, 

238,240.     Insurrection  defined  and  discussed,  notes  132, 

234,  235.     Invasion,  the  law  about,  n.  133. 
To  provide  for  organizing,  arming,  and  disciplining  the  militia, 

and  for  governing  such  part  of  them  as  may  be  employed 

in  the  service  of  the  United  States,  reserving  to  the  States, 

respectively,  the  appointment  of  the   officers,  and    the 

authority  of  training  the  militia  according  to  the  discipline 

prescribed  by  Congress 1        8      16        29,18-" 

This  power  defined  and  discussed,  n.  134.    The  subject 

of  conscription,  n.  134. 
To  exercise  exclusive  legislation,  in  all  cases  whatsoever,  over 

such  district  (not  exceeding  ten  miles  square)  as  may,  by 

14 


311 


INDEX. 


Art.  &ec.    cl.          pp. 

cession  of  particular  States,  and  the  acceptance  of  Congress, 
become  the  seat  of  the  government  of  the  United  States, 
and  to  exercise  like  authority  over  all  places  purchased  by 
the  consent  of  the  legislature  of  the  State  in  which  the 
same  shall  be,  for  the  erection  of  forts,  magazines,  arsenals, 
dock -yards,  and  other  needful  buildings 1  8  17  30, 136 

Cecl'ed  by  Maryland  and  Virginia,  n.  136.  The  power  to 
tax  in,  n.  137.  Jurisdiction  over  forts  and  arsenals,  n.  137. 
To  make  all  laws  which  shall  be  necessary  and  proper  for 
carrying  into  execution  the  foregoing  powers,  and  all  other 
powers  vested  by  this  Constitution  in  the  government  of 
the  United. 3tates,  or  in  any  department  or  office  thereof. .  1  8  18  30,138 

Necessary,  and  this  incidental  power,  defined  and  dis 
cussed,  and  authorities  collected,  notes  138,  274.  Gives 
Congress  the  incidental  and  instrumental  powers,  n.  138. 
CONGRESS.  The  migration  or  importation  of  such  persons  as  any 
of  the  States  now  existin?  shall  think  proper  to  admit, 
shall  not  be  prohibited  by  the  Congress  prior  to  the  year 
1808,  but  a  rax  or  duty  may  be  imposed  on  such  importa 
tion,  not  exceeding  ten  dollars  for  each  person 1  9  1  80, 140 

Migration  defined,  and  the  clause,  n.  139. 

CONGRESS.  No  title  of  nobility  shall  be  granted  by  the  United 
States;  and  no  person  holding  any  office  of  profit  or  trust 
tinder  them  shall,  without  the  consent  of  Congress,  accept 
of  any  present,  emolument,  office,  or  title  of  any  kind 
whatever,  from  any  king,  prince,  or  foreign  State 1  9  8  31  152 

Title  of  nobility  defined,  n.  150.  Office  defined,  n.  151. 
CONGRESS.  No  State  shall,  without  the  consent  of  Congress,  lay 
any  imposts  or  duties  on  imports  or  exports,  except  what 
maybe  absolutely  necessary  for  executing  its  inspection 
laws;  and  the  net  produce  of  all  duties  and  imposts,  laid 
by  any  State  on  imports  or  exports,  shall  be  for  the  use 
of  the  Treasury  of  the  United  States;  and  all  such  laws 
shall  be  subject  to  the  revision  and  control  of  the  Congress.  1  10  2  32,161 

This  article  discussed,  notes  162,  1*J3.  164.  Imposts  on 
imports  defined,  n.  162.  Necessary  explained,  n.  162. 
CONGRESS.  No  State  shall,  without  the  consent  of  Congress,  lay 
any  duty  of  tonnage,  keep  troops  or  ships-of-war,  in  time 
of  peace — enter  into  any  agreement  or  compact  with  an 
other  State,  or  with  a  foreign  power,  or  engage  in  war, 
unless  actually  invaded,  or  in  such  imminent  danger  as 
will  not  admit  of  delay 1  10  3  32,161 

Tonnage  defined,  n.  164.     Troops  means  armies,  n.  164. 
CONGRESS.    Each  State  shall  appoint,  in  such  manner  as  the  legis 
lature  thereof  may  direct,  a  number  of  electors,  equal  to 
the  whole    number  of    senators  and   representatives    to 
•which  the  State  may  be  entitled  in  the.  Congress 2        1        2        32, 164 

The  choice  now  by  elections,   n.  167.    The  same  who 
choose  Congress,  n.  167. 

CONGRESS.  The  Congress  may  determine  the  time  of  choosing  the 
electors,  and  the  day  on  which  they  shall  give  their  votes; 
which  day  shall  be  the  same  throughout  the  United  States.  213  34,167 

The  days  fixed  by  law,  n.  168c. 

CONGRESS.  The  Congress  may,  by  law,  provide  for  the  case  of 
removal,  death,  resignation,  or  inability,  both  of  the  Pre 
sident  and  Vice-President,  declaring  what  officer  shall 
then  act  as  President,  and  such  officer  shall  act  accord 
ingly,  until  the  disability  be  removed,  or  a  President  shall 
be  elected 2  1  5  34,169 

The  act  of  Congress  upon  the  subject,  n.  172,  §  8,  9. 
List  of  Vice-Presidents  who  have  become  President,  n.  172. 
CONGRESS.  The  Congress  may  by  law  vest  the  appointment  of 
such  inferior  officers,  as  they  think  proper,  in  the  Presi 
dent  alone,  in  the  courts  of  law,  or  in  the  heads  of  depart 
ments  2  2  2  35, 174 

Clerks  and  commissioners  of  courts  are   such,  n.  183. 
(See  Civil  Officer*.} 
CONGRESS.    The  President  shall,  from  time  to  time,  give  to  the 


INDEX.  315 

Art.  sec.    cl.  pp. 

Congress  information  of  the  state  of  the  Union,  and  recom 
mend  to  their  consideration  such  measures  as  he  shall 
judge  necessary  and  expedient;  he  may,  on  extraordinary 
occasions,  convene  both  houses,  or  either  of  them,  and,  in 
case  of  disagreement  between  them  with  respect  to  tho 
time  of  adjournment,  he  may  adjourn  them  to  such  time 
as  he  shall  think  proper 2  3  36,183 

Information,  how  given,  n.  187.  Extra  sessions,  n.  188. 
Practice  of  the  courts  as  to  revolutionary  governments, 
Id.  Supreme  Court  cannot  control  President's  discretion, 
n.  189.  His  power  as  to  commissioning,  n.  190. 
CONGRESS.  The  judicial  power  of  the  United  States  shall  bo 
vested  in  one  Supreme  Court,  and  in  such  inferior  courts 
as  the  Congress  may  from  time  to  time  ordain  and  estab 
lish 3  1  36,189 

See  Judicial  Power,  notes  195-209.  Judicial  power  de 
fined.  Id.  It  is  obligatory  on'Congress  to  vest  the  power,  Id. 
Congress  may  define  as  well  as  establish  jurisdiction  of 
inferior  courts,  196.  List  of  the  present  and  past  judges, 
197. 

CONGRESS.  In  certain  cases  the  Supreme  Court  shall  have  appel 
late  jurisdiction,  both  as  to  law  and  fact,  with  such  excep 
tions,  and  under  such  regulations,  as  the  Congress  shall 
make 322  37,204 

Appellate  jurisdiction  defined,  n.  211.  Is  within  the 
control  of  Congress,  Id.  Congress  can  only  confer  juris 
diction  upon  the  national  courts. 

CONGRESS.  When  crimes  are  not  committed  within  any  State,  the 
trial  shall  be  at  such  place  or  places  as  the  Congress  may 
by  law  have  directed 323  37,209 

The  reason  of  this  rule.  n.  213.  Where  tried,  when  the 
crime  has  not  been  committed  in  the  State,  n.  214. 
CONGRESS  shall  have  power  to  declare  the  punishment  of  treason; 
but  no  attainder  of  treason  shall  work  corruption  of 
blood  or  forfeiture,  except  during  the  life  of  the  person 
attainted 332  38,213 

Punishment  defined,  n.  217.  Attainder  defined,  n.  142. 
Corruption  of  blood  defined,  n.  217.  Punishment  of  trea 
son,  Id. 

CONGRESS.  Full  faith  and  credit  shall  be  given  in  each  State,  to 
the  public  acts,  records,  and  judicial  proceedings  of  every 
other  State.  And  the  Congress  may,  by  general  laws, 
prescribe  the  manner  in  which  such  acts,  records,  and 
proceedings,  shall  be  proved,  and  the  effect  thereof 4  1  38, 213 

(See  Credit,  n.  21S.)  The  acts  of  authentication,  n.  219. 
Seal  of  the  State  imports  absolute  verity.  Id.  When  a 
State  statute-book  may  be  read,  Id.  The  effect  of  a  record 
proved  under  the  act,  p.  220,  of  "any  State"  defined,  p. 

219.  How  judicial  records  must  be  certified.  Id.  p.  219. 
Their  effect  when  proved,  notes  218,  219.     There  must 
have  been  service  or  appearance,  notes  218,  219,  pp.  215, 

220.  Proof  of  records  not  judicial,  n.  219,  p.   221,  §  1. 
Decisions  upon  the  statute,  n.  219.    Applies  to  Territories 
as  well  as  States,  n.  219,  p.  222,  §  2.    This  act  constitu 
tional,  n.  219. 

CONGRESS.     New  States  may  be  admitted  by  the  Congress  into 

this  Union;  but  no  new  State  shall  be  formed  or  erected 

within  the  jurisdiction  of  any  other  State;  nor  any  State 

be  formed  by  the  junction  of  two  or  more  States,  or  parts 

of  States,  without  the  consent  of  the  legislatures  of  the 

States  concerned,  as  well  as  of  the  Congress 431        39,234 

New  States  defined,  n.  229;  the  Confederation  on  the 

subject,  Art.  XI.  p.  19.    For  a  full  history,  n.  229.    List  of 

new  States,  and  dates  of  admission,  n.  230.    The  effect  of 

admission.  Id. 
CONGRESS.    The  Congress  shall  have   power  to  dispose   of  and 

make  ail  needful  rules  and  regulations  respecting  the  ter 
ritory  or  other  property  belonging  to  the  United  States; 


316 


pp. 

89,238 


Art.   sec.    cL 

and  nothing  in  this  Constitution  shall  be  so  construed  as 

to  prejudice  any  claims  of  the  United  States,  or  of  any 

particular  State  .........................................      482 

"To  dispose  of"   defined,  n.  231.    "Needful  rules  and 

regulations'"    defined,     Id.      "Territory"    defined,    Id. 

Means   public  property,  p.  238.    A  full  discussion  of  the 

subject,  n.  231.     "Other  property"  defined,  n.  232.    The 

"claims"  defined,  n.  232. 
CONGBESS.    The  Congress,  whenever  two-thirds  of  both  houses 

shall  deem  it  necessary,  shall  propose  amendments  to  this 

Constitution  ;   or,   on  the  application  of  the  legislatures 

of  two-thirds  of  the  several  States,  shall  call  a  convention 

for  proposing  amendments,  which,  in  either  case,  shall  be 

valid  to  all  intents  and  purposes,  as  part  of  this  Constitu 

tion,  when  ratified  by  the  legislatures  of  three-fourths  of 

the  several   States,  or  by  conventions   in   three-fourths 

thereof,  as  the  one  or  the  other  mode  of  ratification  may 

be  proposed  by  the  Congress  :  Provided,  that  no  amend 

ment  which  may  be  made  prior  to  the  year  1808,  shall,  in 

any  manner,  affect  the  first  and  fourth  clauses  in  the  ninth 

section  of  the  first  article;  and  that  no  State,  without  its 

consent,  shall  be  deprived  of  its  equal  suffrage  in  the 

Senate  ........................   .......................      6  40,  246 

Amendments  have  only  been  proposed  to  the  legisla 

tures,  n.  236.    The  President's  approval  unnecessary,  Id. 

History  of  the  amendments,  notes  244,  274^286. 
CONGRESS.    The  senators  and  representatives  in  Congress  shall 

be  bound  by  an  oath  or  affirmation  to  support  this  Con 

stitution  ...............................................      6  8       41250 

What  officers  are  embraced,  n.  242.     The  oath  of  1789, 

Id.    Congress  has  the  right  to  superadd  to  it,  Id.    The 

test  oath,  Id.     Keligious  tests,  Id. 
CONGRESS  shall  make  no  law  respecting  an  establishment  of  reli 

gion,  or  prohibiting  the  free  exercise  thereof;  or  abridging 

the  freedom  of  speech  or  of  the  press;  or  the  right  of  th« 

people  peaceably  to  assemble  and  to  petition  the  govern 

ment  for  a  redress  of  grievances.    Amendments  .........      1  43.254 

"Establishment"  and  "religion"  defined  and  discussed, 

n.  245.     Christianity  is  not  a  part  of  municipal  law,  Id. 

This  does  not  restrain  the  States,  Id.    The  effect  upon  the 

Catholic  religion  in  Texas,  Id.    "Freedom  of  speech"  de 

fined,  n.  246  ;  and  "  of  the  press,"  n.  247.    The  right  to 

petition,  n.  248. 
CONGRESS.    The  certificates  of  the  electoral  votes  for  President 

and  Vice-President  of  the  United  States  shall  be  opened 

by  the  President  of  the  Senate,  in  the  presence  of  the 

Senate  and  House  of  Representatives,  and  the  votes  shall 

then  be  counted.     Amendments  .........................     12  1        46,165 

CONGRESS  shall  have  power  to  enforce  this  article  by  appropriate 

legislation.    Amendments  ..............................     13        2  48,279 

"  Appropriate  "  defined  and  compared  with  "  necessary," 

notes  174.  238.    This  gave  power  to  pass  the  Civil  Rights 

Bill,  n.  274. 
CONGRESS.    The  Congress  shall  have  power  to  enforce,  by  appro 

priate  legislation,  the  provisions  of  this  article.    Amend 

ments  ..................................................     14        5  50,280 

CONGRESS.     Powers  of,  under  the  Confederation,  to  determine  oil 

peace  and  war  (with  certain  exceptions),  Art.  IX.   p.  14. 

Of    sending   and    receiving   ambassadors,  entering    into 

treaties  and  alliances  (with  certain  restrictions)  ;  of  decid 

ing  on  captures  on  land  and  water;  granting  letters  of 

marque  and  reprisal;   appointing  courts  for  the  trial  of 

piracies  and  felonies;  a  court  of  appeal  in  what  cases,  and 

how  exercised,  Art.  IX.  pp.  14-16.     To  determine  contro 

versies  concerning  the  rights  of  soil,  p.  16.    To  coin  money 

and  fix  the  standard  of  weights  and  measures:  to  reguhue 

trade  with  the  Indians,  when,  and  how;  to  establish  post- 

offices  and  collect  postage  ;  to  appoint  what  army  and  navy 


INDEX. 


Art.    sec.    cl. 


317 

PP. 


officers;  to  appoint  a  "committee  of  the  States;"  to  ad 
journ,  when,  &c.,  Art.  IX.  pp.  16,  17.  Restrictions  upon 
Congress,  Art.  IX.  p.  18. 

CONNECTICUT.    Declared   Independence,  p.  7.    One  of  the  Con 
federation,  pp.  9,  21.     Signed  the  Constitution,  p.  42. 
CONNECTICUT.   Entitled  to  five  representatives  in  the  first  Con 
gress 1        2        8          23,67 

By  census  of  1860,  n.  5,  p.  68.  Qualification  for  voters 
in,  n.  17,  p.  60.  Numbers  through  each  decade,  pp.  69,  70, 
71.  Assigned  to  the  second  judicial  circuit,  n.  197.  Rati 
fied  13th  constitutional  amendment,  n.  274;  the  14th 
amendment,  275. 

CONSENT  of  Congress.  No  person  holding  any  office  of  profit  or 
trust  under  the  United  States  shall,  without  the  consent 
of  Congress,  accept  of  any  present,  emolument,  office,  or 
title  of  any  kind  whatever,  from  any  king,  prince,  or 

foreign  State 198        81,152 

Office  defined,  n.  151.  Only  relates  to  officers,  n.  151,  p, 
155. 

CONSENT  of  either  house.  Neither  house,  during  the  session  of 
Congress,  shall,  without  the  consent  of  the  other,  adjourn 
for  more  than  three  days,  nor  to  any  other  place  than  that 

in  which  the  two  houses  shall  be  sitting 154         26,88 

The  reason  of  the  rule,  n.  52. 

CONSENT  of  Congress.  No  State  shall,  without  the  consent  of  the 
Congress,  lay  any  imposts  or  duties  on  imports  or  ex 
ports,  except  what  may  be  absolutely  necessary  for  execut 
ing  its  inspection  laws 1  10  2  82.161 

The  various  terms  defined,  n.  162.  How  far  copied  from 
the  Confederation,  Art.  VI.  p.  11. 

CONSENT  of  Congress.  No  State  shall,  without  the  consent  of 
Congress,  lay  any  duty  of  tonnage ;  keep  troops  or  ships-of- 
war  in  time  of  peace;  enter  into  any  agreement  or  com 
pact  with  another  State,  or  with  a  foreign  power,  or  en 
gage  in  war,  unless  actually  invaded,  or  in  such  imminent 

danger  as  will  not  admit  of  delay 1      10        8        82.161 

Tonnage  defined,  n.  163.    Troops  defined,  n.  164. 
CONSENT  of  the  legislatures.    No  State  shall  be  formed  by  the 
junction  of  two  or  more  States,  or  parts  of  States,  with 
out  the  consent  of  the  legislatures  of  the  States  concern 
ed,  as  well  as  of  the  Congress 431        89,234 

(See  n.  236.) 
CONSENT.    No  State,  without  its  consent,  shall  be  deprived  of 

its  equal  suffrage  in  the  Senate 5  40, 246 

CONSENT.    This  Constitution  adopted  or  done  in  convention  by 

the  unanimous  consent  of  the  States  present 7  41,252 

See  note  defining  ratification  and  giving  dates  of  con 
sent,  n.  243. 

CONSENT.  No  soldier  shall,  in  time  of  peace,  be  quartered  in  any 
house  without  the  consent  of  the  owner,  nor  in  time  of 
war,  but  in  a  manner  to  be  prescribed  by  law  Amend 
ments 8  44,256 

This  amendment  defined  and  explained,  n.  250. 
CONSTITUTION  OF  THE  UNITED  STATES.  Its  roots,  where  found. 
Pref.  p.  iii.  In  Magna  Charta,  &c.  Id.  The  principles 
proclaimed  in  the  Declaration  of  Independence,  Id.  p.  iv. 
Its  division  of  powers  and  expositors,  Pref.  p.  iv.  v.  Who 
are  sworn  to  support  it,  Pref.  p.  v.,  n.  242.  Where  to  bo 
found,  and  its  great  scarcity,  Pref.  p.  v.  Great  inattention 
in  regard  to  it,  Id.  p.  v.  vi.  Fatal  mistakes  in  regard, 
to  it.  Pref.  p.  v.— ix.  Motives  for  this  work,  Pref.  p.  ix. 
x.  xi.  What  seems  to  be  narrowed  down  to  a  principle, 
Pref.  p.  xiii.  notes  274, 286.  Has  no  authoritative  expounder, 
Pref.  p.  xiv.  Printed  as  originally  written,  pp.  22-41. 
Amendments  of,  pp.  43-50.  Directions  for  reading  the 
annotated,  p.  51.  Defined,  is  a  government  and  hot  a 
mere  compact  or  league,  n.  2.  When  adopted,  n.  3.  When 
ratified,  n.  243.  Does  not  create  the  citizen,  n,  169.  How 


318 


INDEX. 


construed,    n.  170;    n.  46.      Still    endures   unimpaired, 

CONSTITUTION  ordained  and  established  in  order  to  form  a  more 
perfect  Union;   establish  justice ;   ensure  domestic  tran 
quillity;  provide  for  the  common  defense;   promote  the 
feneral  welfare,  and  to  secure  the   blessings  of  liberty. 
Veamble 

It  is  a  government,  and  the  supreme  law,  n.  2.  Went 
into  operation,  when,  n.  3.  Created  a  new  government; 
its  mutations  not  a  compact,  n.  4. 

CONSTITUTION.  Congress  shall  have  power  to  make  all  laws  which 
shall  be  necessary  and  proper  for  carrying  into  execution 
the  foregoing  powers,  and  all  other  powers  vested  by  this 
Constitution  in  the  government  of  the  United  States,  or  in 

any  department  or  office  thereof 

This  clause  explained,  notes  IBS,  274. 

CONSTITUTION.  No  person  except  a  natural  born  citizen,  or  a 
citizen  at  the  time  of  the  adoption  of  this  Constitution, 
shall  be  eligible  to  the  office  of  President  of  the  United 

Stotes 2 

The  reason  explained,  n.  170. 

CONSTITUTION  of  the  United  States.  The  President  shall,  before 
he  enter  on  the  execution  of  his  office,  take  an  oath  that 
he  will,  to  the  best  of  his  ability,  "preserve,  protect,  and 

defend  the  Constitution  of  the  United  States " 2 

The  President  is  the  only  officer  required  to  take  this 
oath,  n.  174. 
CONSTITUTION.    The  judicial  power  shall  extend  to  all  cases,  in 

law  and  equity,  arising  under  the  Constitution 8 

Judicial  power  denned,  n.  199.  Does  not  extend  to  all 
questions  arising  under  the  Constitution,  n.  199.  Cases 
arise  when,  n.  200. 

CONSTITUTION.  Nothing  in  this  Constitution  shall  be  so  construed 
as  to  prejudice  any  claims  of  the  United  States,  or  of  any 
particular  State,  respecting  the  territory  or  other  property 

thereof .   

Tliis  applied  to  the  claims  of  North  Carolina  and  Georgia, 

CONSTITUTION.  The  Congress,  whenever  two-thirds  of  both  houses 
shall  deem  it  necessary,  shall  propose  amendments  to  this 
Constitution,  or,  on  the  application  of  the  legislatures  of 
two-thirds  of  the  several  States,  shall  call  a  convention  for 
proposing  amendments,  which,  in  either  case,  shall  be  valid, 
to  all  intents  and  purposes,  as  part  of  this  Constitution, 
when  ratified  by  the  legislatures  of  three-fourths  of  the 
several  States,  or  by  conventions  in  three-fourths  thereof, 
as  the  one  or  the  other  mode  of  ratification  may  be  pro 
posed  by  the  Congress;  provided  that  no  amendment 
which  may  be  made  prior  to  the  year  1808,  shall,  in  any 
manner,  atfect  the  first  and  fourth  clauses  in  the  ninth 
section  of  the  first  article  ;  and  that  no  State,  without  its 
consent,  shall  be  deprived  of  its  equal  suffrage  in  the 

Senate 

This  power  exercised,  notes  236,  244,  274,  275. 

CONSTITUTION.  All  debts  contracted,  and  engagements  entered 
into,  before  the  adoption  of  this  Constitution,  shall  be  as 
valid  against  the  United  States  under  this  Constitution 

as  under  the  Confederation 

The  reason  explained,  n.  237. 

CONSTITUTION.  This  Constitution,  and  the  laws  of  the  United  States 
which  shall  be  made  in  pursuance  thereof,  and  all  treaties 
made,  or  which  shall  be  made,  under  the  authority  of  the 
United  States,  shall  be  the  supreme  law  of  the  land;  and 
the  judges  in  every  State  shall  be  bound  thereby,  any 
thing  in  the  Constitution  or  laws  of  any  State  to  the  con 
trary  notwithstanding 

CONSTITUTION  or  laws  of  any  State.  The  judges  in  every  State 
shall  be  bound  by  the  Constitution,  laws,  and  treaties  of 


Art.  sec.  cl. 


pp. 

22,53 

1   8   18   80,138 
34,167 

217       85,170 
821        37,194 

432        29,233 


40,  246 


40,  247 


2       40, 247 


INDEX. 


319 


Art.    sec.    cl. 

the  United  States,  any  thing  in  the  Constitution  or  laws  of 
any  State  to  the  contrary  notwithstanding 6 

The  Constitution  creates  the  government,  n.  238.  Is 
paramount,  n.  199. 

CONSTITUTION.  The  senators  and  representatives  before  men 
tioned,  and  the  members  of  the  several  State  legislatures, 
and  all  executive  and  judicial  officers,  both  of  the  United 
States  and  of  the  several  States,  shall  be  bound  by  oath  or 
affirmation  to  support  this  Constitution  ;  but  no  religious 
tost  shall  ever  be  required  as  a  qualification  to  any  office 
of  public  trust  under  the  United  States 6 

What  officers;  the  oath;  power  over;  test  oath; 
it  binds  the  citizens  and  States,  n.  242.  Remarks  on, 

CONSTITUTION.  The  ratification  of  the  conventions  of  nine  States 
shall  be  sufficient  for  the  establishment  of  this  Constitu 
tion  between  the  States  so  ratifying  the  same 7 

CONSTITUTION.  The  adoption  of  the  Constitution,  done  in  con 
vention  by  the  unanimous  consent  of  the  States  present, 
the  17th -day  of  September,  A.  D.  1787,  and  of  the  indepen 
dence  of  the  United  States  the  twelfth 7 

Ratification,  and  all  the  other  words,  defined,  n.  243, 
Dates  of  ratification,  Id.  The  terms  in  this  defined  and 
explained,  n.  268. 

CONSTITUTION.  The  enumeration  in  the  Constitution  of  certain 
rights  shall  not  be  construed  to  deny  or  disparage  others 
retained  by  the  people.  Amendments 9 

CONSTITUTION.  'Hie  powers  not  delegated  to  the  United  States 
by  the  Constitution,  nor  prohibited  by  it  to  the  States, 
are  reserved  to  the  States,  respectively,  or  to  the  people. 

Amendments     10 

Delegated,  and  this  power,  defined  and  explained,  n.  269. 
The  word  "  expressly  "  was  rejected,  Id. 

CONSTITUTIONAL  law.  The  act  of  1795,  to  call  forth  the  militia, 
constitutional,  n.  130,  p.  134.  The  act  of  1863,  declar 
ing  the  inilitia,  national  forces,  constitutional;  denied,  n. 
134,  p.  136.  The  passenger  tax  laws  unconstitutional, 
n.  83. 

Only  four  acts  of  Congress  have  been  declared  unconsti 
tutional,  n.  274,  p.  276.  "  So  a  State  law,  requiring  an  im 
porter  to  take  out  license  before  selling  goods,  n.  89, 
p.  108. 

CONSTITUTIONS  of  States.  Rules  of  suffrage  under,  n.  17.  Where 
there  are  two  constitutions  ki  one  State,  the  political 
authorities  must  determine  the  true  one,  n.  199,  p.  195, 
n.  '233.  Of  the  Rebel  States,  n.  274,  p.  283,  §  5. 

CONSTUUKD.  Nothing  in  this  Constitution  shall  be  so  construed 
as  to  prejudice  any  claims  of  the  United  States,  or  of  any 

particular  State 4 

The  object  of  this,  232.  Common  sense  rules  of  inter 
pretation  to  be  employed,  notes  46,  170,  274.  So  as  to 
effect  the  objects,  138. 

CONSTRUED.  The  enumeration  in  the  Constitution  of  certain 
rights  shall  not  be  construed  to  deny  or  disparage  others 
retained  by  the  people.  Amendments 9 

CONSTKUKD.  The  judicial  power  of  the  United  States  shall  not  be 
construed  to  extend  to  any  suit  in  law  or  equity,  com 
menced  or  prosecuted  against  one  of  the  United  States  by 
citizens  of  another  State,  or  by  citizens  or  subjects  of  any 

foreign  State.     Amendments  11 

This  was  an  amendment  of  the  2d  section  of  the  third 
article,  notes  205o,  270. 

CONSULS.  (See  Appointments.)  Cannot  act  without  exequaturs, 
n.  188.  The  grade  defined,  n.  202. 

CONSULS.     The  judicial  power  shall  extend  to  all  cases  affecting 

ambassadors,  other  public  ministers,  and  consuls,  in  which  /    g 
the  bupreine  Court  shall  have  original  jurisdiction  «    g 


pp. 

40,  24T 


3        41,250 

41,  252 
41,  252 

45,268 
45,269 


39,238 


45,268 


46,269 


37  194 
87'204 


320 


INDEX. 


CONTRACTS.    No  State  shall  pass  any  law  impairing  the  obligation 

of  contracts 1      10        1 

What  laws  enter  into  the  contract,  n.  157.  Validity  and 
remedy,  how  connected,  n.  157,  p.  156.  Repealing  laws 
must  not  impair,  Id.  Monopolies,  how  affected,  Id. 
Contract  defined  and  discussed,  n.  157,  p.  157.  Private  in 
corporations  are,  Id.  Mere  retrospective  laws  are  not, 
n.  158.  How  exemption  laws  impair,  n.  159.  And  stay 
laws,  n.  160.  And  redemption  laws,  n.  160.  Laws  which 
merely  afi'ect  the  remedy  do  not  impair,  n.  161.  Nor  laws 
which  merely  declare  the  validity  of,  n.  161. 

CONTRACTED.  All  debts  contracted,  and  engagements  entered  into 
before  the  adoption  of  this  Constitution,  snail  be  as  valid 
against  the  United  States  under  this  Constitution  as  under 

the  Confederation 6 

This  was  only  a  moral  and  general  obligation,  n.  237. 

CONTROVERSIES.  The  judicial  power  shall  extend  to  controversies 
to  which  the  United  States  shall  be  a  party ;  to  contro 
versies  between  two  or  more  States ;  between  a  State  and 
citizens  of  another  State ;  between  citizens  of  different 
States;  between  citizens  of  the  same  State  claiming  lands 
under  grants  of  different  States,  and  between  a  State  or 
the  citizens  thereof  and  foreign  States,  citizens,  or  subjects.  821 

See  these  several  classifications  fully  explained,  notes 
199-200.  (See  Case.) 

CONTROVERSIES  between  States  settled  by  Congress  under  the 
Confederation,  Art.  IX.  p.  14. 

CONTROVERSY.  In  suits  at  common  law,  whero  the  value  in  con 
troversy  shall  exceed  twenty  dollars,  the  right  of  trial  by 

jury  shall  be  preserved.    Amendments 7 

This  amendment  discussed  and  explained,  n.  263.  The 
parties  may  waive  the  right  of  trial  by  jury,  n.  268. 

CONVENE  Congress.  The  President  may,  on  extraordinary  oc 
casions,  convene  both  houses,  or  either  of  them 2  3 

The  power  has  been  frequently  exercised,  n.  188. 

CONVENED.  The  United  States  shall,  on  application  of  the 
executive  of  a  State,  when  the  legislature  cannot  be 

convened,  protect  such  State  from  domestic  violence 4        4 

The  President  must  determine  what  body  of  men  con 
stitute  the  legislature,  and  who  is  the  governor,  n.  235. 

CONTENTION.  The  adoption  of  the  Constitution,  done  in  Conven 
tion  by  the  unanimous  consent  of  the  States  present,  the 
17th  September,  A.  D.  1787 7  1 

CONVENTIONS  for  proposing  and   ratifying  amendments   of   the 

Constitution.     (See  Constitution.) ." 5 

CONVENTIONS  of  States.  The  ratification  of  the  conventions  of 
nine  States  shall  be  sufficient  for  the  establishment  of  this 

Constitution  between  the  States  so  ratifying  the  same 7  1 

No  such  proposal  has  ever  been  made  by  the  States. 
This  was  intended  to  leave  the  action  to  the  people,  n. 
243.  Not  by  the  States  in  their  sovereign  capacities,  n!  6. 
Not  a  majority  of  the  whole  people,  n.  6. 

CONVENTIONS  of  the  rebel  States  to  frame  Constitutions,  n.  27,  p.  284, 
§  5.  Delegates  to  be  elected,  n.  276,  p.  284.  (Supplemen 
tary  act)  §  2.  The  voters  to  decide  for  or  against  a  con 
vention,  Id.  §  3.  If  for,  to  be  held,  Id.  §  4.  Constitution  to 
be  submitted  by  the,  to  the  voters,  Id.  §  4.  If  adopted,  the 
President  of,  to  transmit  the  Constitution  to  Congress,  Id. 
§  5.  The  conventions  to  prescribe  the  fees,  Ac.,  Id.  §  8. 
The  conventions  have  been  carried  and  met  in  all  the 
States  but  Texas,  Id  278. 

CONVICTED.  No  person  shall  be  convicted  on  an  impeachment, 
without  the  concurrence  of  two-thirds  of  the  senators 
present 186 

CONTICTED.  No  person  shall  be  convicted  of  treason,  unless  on 
the  testimony  of  two  witnesses  to  the  same  overt  act,  or 

on  confession  in  open  court 831 

This  refera  to  the  proof  on  the  trial,  n.  216. 


PP- 

81,153 


40,247 

87,194 

45, 266 
86, 183 
89,242 

41,  252 
40,  246 

41, 252 


25,  81 
38,  211 


IKDEX. 


Art.  sec.     cl.         pp. 

COPYRIGHT.  An  author  has  none  except  what  is  secured  by  act  of 
Congress,  n.  107,  p.  122. 

CORRUPTION  of  blood.  No  attainder  of  treason  shall  work  corrup 
tion  of  blood  or  forfeiture,  except  during  the  life  of  the 

person  attainted 332        38,213 

By  corruption  of  blood  all  inheritable  qualities  are 
destroyed,  n.  142. 

COUNSEL.     In  all  criminal  prosecutions  the  accused  to  have  the 

assistance  of  counsel  for  his  defense.     Amendments 6  44,  263 

When  this  waa  adopted  counsel  were  not  allowed  in 
England,  n.  262. 

COUNTERFEITING.  Congress  shall  have  power  to  provide  for  the 
punishment  of  counterfeiting  the  securities  and  current 

coin  of  the  United  States 186        29,113 

Defined  ;  power  of  States  to  punish,  n.  103. 

COURT  of  impeachment.     (See  Impeachment.) 

COURT.     (See /Supreme  Court.) 222        35,174 

COURT.  No  person  shall  be  convicted  of  treason,  unless  on  the 
testimony  of  two  witnesses  to  the  same  avert  act,  or  on 

confession  in  open  court 331        38,211 

This  means  the  trial  not  the  preliminary  examination, 
n.  216. 

COURT  of  the  United  States.  In  suits  at  common  law,  where  the 
value  in  controversy  shall  exceed  twenty  dollars,  the 
right  of  trial  by  jury  shall  be  preserved  ;  and  no  fact  tried 
by  a  jury  shall  be  otherwise  re-examined  in  any  court  of 
the  United  States,  than  according  to  the  rules  of  the  com 
mon  law.  Amendments 7  45, 266 

This  includes  all  suits  not  of  equity  or  admiralty  juris 
diction,  n.  263.  The  common  law  of  England  is  meant, 
n.  263.  No  fact  revised,  264.  Instances  of  violation,  n.  265. 

COURTS.   Congress  shall  have  power  to  constitute  tribunals  inferior 

to  the  Supreme  Court 1        8        9        29,124 

To  constitute  tribunals,  defined,  n.  109.  The  jurisdic 
tion  of  such  courts,  Id.  Congress  can  regulate  their  juris 
diction,  n.  196. 

COURTS.  The  judicial  power  of  the  United  States  shall  be  vested 
in  one  Supreme  Court,  and  in  such  inferior  com  ts  as  the 
Congress  may,  from  time  to  time,  orduin  and  establish. 

(See  Judicial  Power.) 3        1  36, 189 

Judicial  power  defined,  n.  195.  Mandatory  upon  Con- 
cress  to  vest,  Id.  Supreme  Court  defined,  Id.  The  present 
organization  of  the  Supreme  Court,  197.  List  of  all  the 
judges  who  presided  in  the,  Id.  Jurisdiction  of  the,  n.  210. 

COURTS  of  law.  The  Congress  may,  by  law,  vest  the  appointment 
of  such  inferior  officers  as  they  think  proper  in  the  Presi 
dent  alone,  in  the  courts  of  law,  or  in  the  heads  of  depart 
ments 

Clerks  of  the  court  are  such  officers,  n.  183,  and  commis 
sioners  of  bail  and  affidavits,  Id. 

CRAWFORD,  WILLIAM  H.  Presiding  officer  of  the  Senate,  n.  88, 
p.  79. 

CREDIT  of  the  United  States.  Congress  shall  have  power  to  bor 
row  money  on  the  credit  of  the  United  States 1 

(See  Borrow,  notes  82,  83,  84.) 

CREDIT.    No  State  shall  emit  bills  of  credit 1 


222       85,14T 


10 


(See  Bills  of  Credit);  defined,  n.  154. 

CREDIT.  Full  faith  and  credit  shall  be  given  in  each  State  to  the 
public  acts,  records,  and  judicial  proceedings  of  every 
other  State 

Full  faith  and  credit  defined,  n.  218.     (See  Judgments 
and  Judicial  Proceedings,  notes  218,  219.) 

A  judgment  of  a  State  court  has  the  same  credit  in 
every  other  State  which  it  has  in  its  own,  n.  218.    Provided 
that  there  has  been  service  or  appearance,  Id.     The  judg 
ments  are  conclusive.  Id. 
CEIME.    Defined,  n.  193;  distinguished  from  misdemeanor,  n.  194. 

Subject  fully  discussed,  Id. 

14* 


28, 103 
81,153 

88, 213 


322 


INDEX. 


Art.    see.    cl.          pp. 

CKIME.  A  person  charged  with  treason,  felony,  or  other  crime, 
and  fleeing  from  justice,  to  be  delivered  up  to  the  State 

having  jurisdiction  of  the  crime 422        85,229 

The  State  making  the  demand  must  determine  what  is 
crime,  n.  223. 

CRIME.  No  person  shall  be  held  to  answer  for  ft  capital,  or  other 
wise  infamous  crime,  unless  on  a  presentment  or  indict 
ment  of  a  grand  jury.  Amendments 5  44,  253 

These  terms  defined,  n.  253. 

Neither  slavery  nor  involuntary  servitude,  except  as  a 
punishment  for  crime,  &c.  (See  /Slaves,  n.  274.)  12  1  . 

CRIMES.    The  trial  of  all  crimes,  except  in  cases  of  impeachment, 

shall  be  by  jury 323        87,209 

Trial  and  crimes  in  this  connection  defined,  n.  212. 
The  crimes  must  be  against  an  act  of  Congress;  the 
jury  must  consist  of  twelve  men,  Id.    (See  Crime.) 
CRIMINAL  case.     Nor  shall  any  person  be  compelled,  in  any  crimi 
nal  case,  to  be  a  witness  against  himself.   Amendments. .       5  44,  258 
CRIMINAL  cases.    Jury  not  the  judges  of  the  law  in,  n.  212. 
CRIMINAL  prosecutions.     In  all  criminal  prosecutions  the  accused 
shall  enjoy  the  right  to  a  speedy  and  public  trial,  by  an 
impartial  jury  of  the  State  and  district  wherein  the  crime 
shall  have  been  committed ;   which  district  shall  have 
been  previously  ascertained  by  law,  and  to  be  informed  of 
the  nature  and  cause  of  the  accusation  ;  to  be  confronted 
with   the  witnesses  against  him;    to    have   compulsory 
process    for    obtaining    witnesses    in    his    favor;  and  to 
nave  the  assistance  of  counsel  for  his  defense.    Amend 
ments 6  44,263 

The  accused  defined,  n.  260.  Character  of  crimes  de 
fined.  Relates  to  war  as  well  as  peace,  Id.  Compulsory 
process  and  powers  defined,  261. 

CRUEL  and  unusual  punishment.  Excessive  bail  shall  not  be  re 
quired,  nor  excessive  fines  imposed,  nor  cruel  and  un 
usual  punishments  inflicted.  Amendments 8  45, 2C7 

The  sum  required  must  not  be  too  large,  n.  268. 
A  fine  of  fifty  dollars,  and  imprisonment  three  months, 
for  selling  liquor  without  license  is  not  cruel,  n.  267. 
Cr SUING,  WILLIAM.    One  of  the  Supreme  Judges,  n.  197,  p.  193. 

DALLAS,  GEORGE  M.    Vice-President,  notes,  37,  78. 

DANA,  FRANCIS,  of  Mass.     Signed  Articles  of  Confederation,  p.  21. 

DANGER.     (See  Public  Danger.) 

DANIEL  PKTER  V.  Associate  Justice  of  the  Supreme  Court, 
n.  197. 

DATES  in  this  work.  Of  the  Dec  of  Ind.,  p.  7.  Of  Articles  of  Con 
federation,  p.  21.  Of  Constitution  of  the  United  States, 
pp.  41,  252 ;  and  its  ratification  by  the  States,  n.  243.  Of  the 
amendments,  n.  244.  When  the  Constitution  went  into 
operation,  n.  3.  Of  the  State  Constitutions  qualifying 
voters,  n.  17.  Of  the  several  censuses,  n.  24,  pp.  69-71.  Of  ser 
vice  of  the  Speakers  of  the  House,  n.  26,  p.  73.  Of  service 
of  the  Vice-Presidents,  n.  37.  Of  service  of  presiding  offi 
cers  of  Senate,  n.  88.  Of  service  of  the  Presidents,  n.  166. 
Of  service,  births,  and  deaths  of  the  judges  of  the  Supreme 
Court,  n.  197.  Of  admission  of  the  new  States,  n.  230.  Of 
the  several  reconstruction  acts,  n.  276.  Of  the  act  for 
election  of  senators,  n.  30.  Of  the  act  fixing  sessions  of 
Congress,  n.  43.  Of  the  public  debt,  n.  78,  pp.  96-99.  Of 
the  acts  to  issue  treasury  notes,  n.  83.  Of  the  act  regu 
lating  weights  and  measures,  n.  102.  Of  the  first  post- 
offices,  n.  105.  Of  the  declarations  of  war,  notes  117,  118. 
Of  the  acts  punishing  felony,  n.  113.  Of  the  recognition  of 
the  Confederates  by  England,  n.  118,  p.  129.  Of  the  acts 
for  organizing  the  militia,  n.  134.  Of  the  suspension  of 
the  writ  of  Habeas  Corpus,  n.  141,  p.  143.  Of  election  of 
President,  n.  168c.  Of  the  act  for  filling  vacancies  in  the 
ofiice  of  President,  n.  172.  Of  Viee-Presidents  becoming 


INDEX. 


Presidents,  and  of  the  deaths  of  Presidents  Harrison,  Tay 
lor,  and  Lincoln,  n.  172.  Of  the  Tenure  of  Office  Bill, 
n.  184,  the  acts  for  allotting  the  Supreme  Court,  n,  197,  Of 
the  Judiciary  Act,  n.  206. 

DAVIS,  DAVID.  One  of  the  Associate  Justices  of  the  Supreme  Court 
n.  198. 

DAVIS.  JOHN  W.     Was  Speaker,  n,  26,  p.  73. 

DAYTON,  JONATHAN,  of  New  Jersey.  Signed  this  Constitution, 
pp.  42,  252.  Was  Speaker,  n.  26,  p.  72. 

DEATH.  In  case  of  the  death  of  the  President,  the  duties  of  that 
office.shall  devolve  on  the  Vice-President,  and  in  case  of 
the  death  of  both  President  and  Vice-President,  Congress 
shall  by  law  declare  what  officer  shall  then  act  as  Presi 
dent 2 

DEBATE.  Senators  and  representatives,  for  any  speech  or  debate 
in  either  house,  shall  not  be  questioned  in  any  other 
place .  1 

DEBT.  The  validity  of  the  public  debt  of  the  United  States, 
authorized  by  law,  including  debts  incurred  for  payment 
of  pensions  and  bounties  for  services  in  suppressi-ng  insur 
rection  or  rebellion,  shall  not  be  questioned.  But  neither 
the  United  States  nor  any  State  shall  assume  or  pay  any 
debt  or  obligation  incurred  in  aid  of  insurrection  or  rebel 
lion  against  the  United  States,  or  any  claim  for  the  loss  or 
emancipation  of  any  slave;  but  all  such  debts,  obliga 
tions  and  claims  shall  be  held  illegal  and  void.  Amend 
ments.  This  amendment  discussed,  n.  282 14 

DFBTS  of  the  United  States.  Congress  shall  have  power  to  pay 
the  debts  of  the  United  States.  This  section  denned, 
n.  78.  The  debts  from  the  foundation  of  the  government,  1 

DEBTS.  No  State  shall  make  any  thing  but  gold  and  silver  coin  a 

tender  in  payment  of  debts 1 

DEBTS.  All  debts  contracted  and  engagements  entered  into  before 
the  adoption  of  this  Constitution,  shall  be  as  valid  against 
the  United  States  under  this  Constitution  as  under  the 
Confederation 6 

DECIMETER.    A  measure  of  length,  n.  102,  p.  117,  §  2. 

DECITIZENIZE.  No  power  in  the  States  to,  Pref.  p.  ix.  No  law  to,  as 
in  France,  n.  169. 

DECLARATION  of  Independence,  pp.  1-8. 

DECLARATORY.  Some  of  the  amendments  were,  others  restrictive, 
n.  258,  p.  262. 

DEFSNSE.  Constitution  established  to  provide  for  the  common 
defense.  Preamble 

DEFENSE.  Congress  shall  have  power  to  provide  for  the  common 

defense 1 

DEFENSE.  In  all  criminal  prosecutions  the  accused  shall  enjoy 
the,  right  to  have  the  assistance  of  counsel  for  his  defense. 
Amendments 6 

DEFEND  the  Constitution.  The  President  of  the  United  States 
shall  swear  or  affirm  to  preserve,  protect,  and  defend  the 
Constitution  of  the  United  States 

DEFINITIONS  of  words  and  terms.  Accusation,  n.  260.  Accused, 
n.  260.  "Asreement  or  Compact,"  n.  164.  Ambassador, 
n.  180.  Armies,  n.  124.  Arts,  n.  107.  Attainder,  n.  142. 
Authors,  n.  107.  Bail,  n.  266.  Bankrupt,  n.  94.  Bank 
ruptcy,  n.  95.  "  Bill  of  Attainder,"  n.  142.  "  Bills  of 
Credit,"  n.  154.  Capitation,  n.  144.  Census,  n.  145.  Citi 
zen,  notes  220,  221,  274.  Coin,  n.  97.  Commerce,  n.  86. 
Common  Defense,  notes  10.  79.  "Common  Law,1' 
n.  263.  Compact,  n.  164.  Compulsory  Process,  n.  261.  Con 
gress,  n.  15.  Constitution,  n.  109.  Consul,  n.  181.  Contract, 
n.  157.  Controversies,  n.  206.  '-Corruption  of  Blood." 
n.  217.  Crodit,  n.  154.  Crime,  n.  193.  Counterfeiting,  n.  103. 
"  Declare  War,"  n.  117.  Define,  n.  110.  Delegated,  n.  269. 
Deny,  n  268.  "  Direct  Taxes."  notes  22,  144.  Disparage 
n.  268.  Dispose  of,  n.  231.  "  Domestic  Tranquillity,"  n.  9. 
*  Domestic  Violence,11  n.  235.  "  Due  Process  of  Law,"  n.  257. 


Art    sec,    cL 


PP. 


84, 169 


10 


2        1 


49,  280 

28,94 

81,163 

40,247 


22,53 
28,94 

44,  203 
35, 170 


324  INDEX. 

Art.    sec.    cl.         pp. 

Duties,  n.  75.    Elections,  n.  44.    Electors,  notes  16,  167. 

Enumeration,  n.  263.    Escaping,  n.  227.    Establish,  n.  104. 

Establishment,  n.  215.   Excise,  n.  77.   "Executive  Power," 

n.   165.     Ex   Post  Facto,  notes  143,   156.       "Faith  and 

Credit,"  n.  218.     Felony,  n.  113.     Fix,    n.  101.     Flee,  n. 

224.     Freedom  (of  speech  and  of  the  press),  notes  246, 

247.     "General  Welfare,"   notes   11,  80.     Grand  Jury,  n. 

253.     Guarantee,  n,  233.     Habeas  Corpus,  n.  141.     High 

Crimes,  n.  193.     High  Seas,  n.  114.     Immunities,  n.  221. 

Imposts,  notes  76,  146,  162.   Indictments,  n.  253.    "  Inhabi 

tant  of  a  State,"  n.  19.    Insurrection,  n.  132.     Invasion, 

n.  133.    Invent,  n.  108.    Judgment,  n.  40.    Judicial  Pro 

ceedings,  n.  218.  Jurisdiction,  notes  210,  211.  Just  Compen 

sation,  n.  259.     Justice,  n.  8.     Law  of  Nations,  n.  116. 

Laws  of  the   Union,  n.  181.     Legislative  Power,  n.  14. 

Liberty,  n.   12.    Make   Rules,   n.   129.     Marque,   n.   120. 

Migration,  n.  139.     Militia,  n.  130.    Misdemeanors,  n.  194. 

Money,  notes  83,  98,  149.     Natural  Born,  n.  169.    Natu 

ralization,  n.  93.    Navy,  n.  128.    Necessary,  n.  138.  Need 

ful   Rules  and    Regulations,   n.   231.      Nobility,   n.   150 

Nominate,  n.  179.     Members',  n.  24.     Offenses  against  the 

Law  of  Nations,  n.  115.     Office,  n.  151.     Original  Juris 

diction,  n.  210.     Owner,  n.  250.     Pardon,  n.  177.      Piracy, 

n.  112.     Post-Offices,  n.  105.     Post-Roads,  n.  106.     Power,  « 

notes  71,  138.     Preference,  n.  147.     Presentment,  n.   258. 

Private  Property,  n.  258.     Privilege,  notes  140,  221.     Pro 

ceedings,  n.  218.     "Process  of  Law,"  notes  257,  261.  Pro 

gress,  n.  107.    Promote,  n.  107.    Proper,  n.  138.    Property, 

notes  232,  258.     Provide  and  Maintain,  n.  128.     Punish,  n. 

111.     Punishment,  n.  217.     Qualifications,  n.  16.  Quarter, 

n.  250.    "  Raise  and  Support,"  n.  123.  Ratification,  n.  243. 

Records,  n.  218.     Regulate,  n.  85.     Religion,  n.  245.     Re 

ligious  Test,  n.  242.     Reprieve,  n.  177.     Reprisal,  n.  121. 

Republican  Government,  n.  233.     Returns,  n.  45.     Reve 

nue,    n.    65.     Rules,  n.  47.      Science,  n.  107.      Securing, 

n.  107.     Soldier,  n.   250.     Standard,  n.  101.     State,  n.  229. 

Supreme  Law,   n.   240.     Taxes,  notes  22,   72.     Territory, 

n.  281.    Ton,  n.  102.     Tonnage,  n.  163.     Treason,  n.  215. 

Treaty,  notes  178,  240.    Trial,  n.  212.    Tribunal,  n.  109. 

Troops,   n.   164.     "Two-thirds,"   n.   68.     Uniform,   n.  81. 

United  States  of  America,  n.  13.    "  Vessels  Bound,"  n. 

148.     Veto,  n.  67.     Vice-President,  n.  36.     War,   n.  117. 

Warrant,  n.  252.  "We  the  People,"1  n.  6.     "Weights  and 

Measures,"  n.  102.     "  Yeas  and  Nays,"  n.  51. 
DEKAGRAM.    A  measure  of  weight,  n.  102,  p.  118,  §  2. 
DEKALITER.     A  measure  of  capacity,  n.  102,  p.  118.  §  2. 
DEKAMETKR.     A  measure  of  length,  n.  102,  p.  117,  §  2. 
DELAWARE.   Declared  Independence,  p.  7.   Entered  into  Articles  of 

Confederation,  pp.  9.  21.     Qualification  for  suffrage  in,  n. 

17,  p.  60.     One  representative,  pp.  23,  67,  68,  n.  24     Num 

ber  of  inhabitants  through  each  decade,  n.  24,  pp.  68-71. 

Assigned  to  a  circuit,  n.  198.     Rejected  the  13th  and  14th 

Amendments,  n.  274,  275. 

DKLA.WARE.    Entitled  to  one  representative  in  first  Congress  ____       128          23.67 
DELKGATED.     The  powers  not  delegated  to  the  United  States  by 


the  Constitution,  nor  prohibited  by  it  to  the  States,  are 
reserved   to  the   States,  respectively, 


or  to  the    people. 
Amendments  ...........................................     10  45^  269 

Delegated  defined,  n.  269.    Copied  from  the  Confedera 
tion,  n.  269.     See  also  p.  9. 

DELEGATES.     How  chosen   under  the  Articles  of  Confederation. 
Art.  V.  p.  11.     Freedom  of  speech  and  power   of  arrest 
secured,  Id. 
DELKGATES   or   members  of  State   legislatures   shall   be   bound 

by  oath  or  affirmation  to  support  this  Constitution  .......       6  3    41,2r>0 

The  reason  of  this  oath,  and  the  test  oath,  n.  242.  Per 
sons  who  had  taken  this  oath  and  engaged  in  rebellion, 
disqualified  for  office,  14th  amendment.  The  same  class 


INDEX. 


Art.    sec.    cl. 


pp. 


disfranchised  in  certain  elections,  n.  276,  p.  284,  §  1.  The 

act  explained,   Id.  §  6.     This   disqualification  discussed, 

n.  281.     To  the  conventions  to  frame  reconstructed  consti 
tutions,  qualifications  of,  n.  276,  p.  2S3,  §  5.     How  to  be 

elected  and  to  frame  a  State  Constitution,  Id. 
DKI.IVERED  up.      Fugitives  from  justice  to  be   delivered  up  to 

be  removed  to  the  State  having  jurisdiction  of  the  crime.      4        2        2        38, 220 
The  precept  of  the  governor  protects  the  person  who 

receives  the  fugitive,  n.  223.     The  courts   cannot  go  be 
hind  the  warrant,  n.  223. 
DELIVERED  up.      Persons  held  to  service  or  labor  in  one  State, 

escaping  into  another,  shall   be   delivered  up   on  claim 

of  the  party  to  whom  such  service  or  labor  may  be  due. .       4        2        3        39,  232 
This  contemplates  a  summary  proceeding,  n.  228.    The 

clause  is  in  effect  a  treaty  of  rendition,  Id.    The  fugitive 

slave  laws  were    constitutional,  Id.     Copied    from    the 

Confederation,  Art.  VI.  p.  10. 

DKMAND.  A  fugitive  from  justice  shall,  on  demand  of  the  ex 
ecutive  authority  of  the  State  from  which  he  fled,  be  de 
livered  up  to  be  removed  to  the  State  having  jurisdiction 

of  the  crime 4        2        2        88,  229 

Person  is  taken  in  its  largest  sense,  and  menns  non-resi 
dents  as  well  as  residents,  n.  228.    The  fugitive  may  bo 

arrested  and  detained  until  demand,  I<1.     The  executive 

upon  whom  the  demand  is  made  cannot  go  behind  it,  Id. 

This  duty  is  ministerial,  Id.     The  governors  warrant  on 

demand,   Id.     Copied  from   the   Confederation,  Art.  VI., 

p.  10. 
DENIZENS   of  acquired   soil    become  citizens,  n.  19.      No  middle 

class  of,  in  the  United  States,  n.  169. 
DEPARTMENT  of   the  government.     Congress  shall  have  power 

to  make  all  laws  which  shall  be  necessary  and  proper  for 

carrying    into    execution   the   foregoing  powers,  and  all 

other  powers  vested  by  this  Constitution  in  the  govern 
ment  of  the  United  States,  or  in  any  department  or  office 

thereof 1        8      18       80,138 

This  power  defined  and  discussed,  n.  138. 
DEPARTMENTS.  The  President  may  require  the  opinion,  in  writing, 

of  the  principal  officer  in  each  of  the  executive  depart 
ments 2        2        1        85,171 

These  opinions  how  given,  n.  176.     The  departments 

enumerated,  Id. 
DEPARTMENTS.     The  Congress  may  by  law  vest  the  appointment  of 

such  inferior  officers  as  they  think  proper  in  the  President 

alone,  in  the  courts  of  law,  or  in  the  heads  of  departments. .      222        85174 

(See  note  183.) 
DEPRIVED.    No  State  without  its  consent  shall  be  deprived  of  its 

equal  suffrage  in  the  Senate 5  40, 246 

DEVOLVE.     In  case  of  the  removal  of  the  President  from  office,  or 

of  his  death,  resignation,  or  inability  to   discharge  the 

powers  and  duties  of  the  said  office,  the  same  shall  devolve 

on  the  Vice-President 215         34,69 

The  law  regulating  the   subject,  n.  172.     A  list  of  the 

Vice-Presidents  upon  whom  the  presidency  has  devolved, 

n.  172,  p.  170. 
DICKINSON,  JOHN.  Deputy  from  Delaware.  Signed  the  Articles  of 

Confederation,  p.  21  ;  signed  this  Constitution,  p.  42. 
DIRECT  tax.     Representatives  and  direct  taxes  to  be  apportioned 

nrnong  the  States  according  to  their  respective  numbers, 

&c.    (See  Representative*.} 1        2        8          23, 6T 

Direct  taxes  defined,  n.  22.     Must  be  laid  by  rule  of  ap 
portionment,  Id.  notes  81,  144.    How  apportioned,  n.  23. 

"Numbers"  defined  and  discussed,  n.  24.     Population  in 

different  decades,  Id  pp.  70-71. 
DIREOT  tax.    No  capitation  or  other  direct  tax  shall  be  laid,  unless 

in  proportion  to  the  census  or  enumeration  hereinbefore 

directed  to  be  taken 194        31,149 

"  Capitation  "  defined,  n.  144.    Principles  on  which  the 


326  INDEX. 

Art.    sec.    cl.          pp. 

government  suppressed  the  rebellion,  Id.    General  Jackson 

on  nullification,  Id.    "Census"  defined,  n.  145. 
DISCHARGED  from  service  or  labor.     No  person  held  to  service  or 

labor  in  one  State  shall  be  discharged  from  such  service  or 

labor  in  another T .' 423        39,289 

DISCITLIMNG  the  militia.     Congress  shall  have  power  to  provide 

for  organizing,  arming,  and  disciplining  the  militia,  and  for 

governing  such  part  of  them  as  may  be  employed  in  the 

service  of  the  United  States,  reserving  to  the  "States  re 
spectively  the  appointment  of  the  officers,  and  the  author 
ity  of  training  the  militia  according  to  the  discipline 

prescribed  by  Congress 1        8      16        29, 135 

The  full  meaning  of  "organizing,  arming,"  &c.,  n.  134. 

Decisions    on  the    constitutionality  of   conscription,    Id. 

n.  118,  p.  129. 
DISCOVKKIES.     Exclusive  right  to  discoveries  may  be  secured  by 

inventors  for  a  limited  time 1        8        8        29,121 

Copyrights  and  patents  discussed,  n.  107,  pp.  122, 123. 
DisrRANCinsEMENT  of  a  citizen  not  an  unusual  punishment,   n. 

267,  p.  268.     Certain  officers  who  had  engaged  in  the  rebel 
lion  disfranchised,  n.  276,  p.  283,  §  5. 
DISORDERLY  behavior.     Each   house  may  punish  its  members  for 

disorderly  behavior  1        5        2          26, 80 

Power  of  Congress  as  to  contempts,  n.  48.    Sam  Hous 
ton's  case,  Id.    Legitimate  grounds  of  expulsion,  Id.  p.  87. 

Kebel  senators  expelled,  n.  50. 
DISPARAGE  defined,  n.  258. 
DISPUTES  between  States.     How  settled  under  the  Confederation, 

Art.  IX.  p.  14. 
DISQUALIFICATION.    Judgment  on  impeachment  a  disqualification 

to  hold  and  enjoy  any  office,  &c.,  under  the  United  States..       137         15,82 
Judgment  on  impeachment  cannot  be  short  of  removal 

from  office,  n.  40.    Usage  in  England,  Id.    Does  not  affect 

his  person,  Id    Civil  officers  liable  to  impeachment,  n.  191. 

Impeachment  by  the  common  law  defined.  Id.     Keport  of 

Committee  on   Impeachment  of  President  Johnson,  with 

precedents  cited,  n.  194,  p.  188.     (See  14  cl.  amMt,  p.  279.) 
DISTRICT  not  exceeding  ten  miles  square.     Congress  shall  have 

power  to  exercise  exclusive  legislation  in  all  cases  whatso 
ever  over  such  district  (not  exceeding  ten  miles  square) 

as  may,  by  cession  of  particular  States  and  the  acceptance 

of  Congress,  become  the  seat^of  the  government  of  the 

United  States 1        8      IT        80,  t36 

Cession  of  the  District  of  Columbia,  n.  136.    This  power 

includes  taxation,  n.  137.    Carries  with  it  right  of  exclusive 

jurisdiction,  Id.     No  action  can  be  taken  in  any  case  in 

the  ceded  district,  after  cession,  by  the  State  ceding,  Id. 

p.  138. 
DISTRICT.     In  all  criminal  prosecutions  the  accused  shall  enjoy  the 

right  to  a  speedy  and  public  trial  by  an  impartial  jury  of 

the  State  and  district  wherein  the  crime  shall  have  been 

committed,  which   district   shall   have    been    previously 

ascertained  by  law.     Amendments 6  44, 263 

DIVIDED.     The  Vice-President  shall  have  no  vote  unless  the  Senate- 

be  equally  divided 1        8        4          24,77 

"  V  ice- President "  and  his  powers  discussed,  n.  86. 
Divnns  Providence.     Firm  reliance  on,  by  signers  of  the  Dec.  of 

Ind.  p.  7. 
DOCK-YARDS.  &o.    Congress  shall  have  power  to  exercise  exclusive 

legislation  over  dock-yards 1        8      17        80,136 

This  power  carries  with  it  right  of  exclusive  jurisdiction, 

n.  136.  Limitation  of  this  power,  Id. 
DOMESTIC  violence.    The  United  States  shall,  on  application  of  the 

legislature,  or   of   the   executive   (when  the    legislature 

cannot  be  convened),  protect  each  State  against  domestic 

violence 4        4  39,242 

This  subject  discussed  and  explained  by  history,  notes 

234,235, 


INDEX. 


327 


DKAYTON,  "WILLIAM  HEXRY,  of  South  Carolina.  Signed  Articles 
of  Confederation,  p.  21. 

DUANE,  JAMES,  of  New  York.  Signed  Articles  of  Confederation, 
p.  21. 

DUEE,  WILLIAM,  of  New  York.  Signed  Articles  of  Confederation, 
p.  21. 

DURING  good  behavior.  The  judges,  both  of  the  Supreme  and 
inferior  courts,  shall  hold  their  offices  during  good  be 
havior  8 

Good  behavior  defined,  n.  197.  Judges  impeachable  for 
want  of,  n.  194. 

DUTIES.     Congress  shall  have  power  to  lay  duties 1 

DUTIES.  All  duties,  imposts,  and  excises  shall  be  uniform  through 
out  the  United  States ^...  1 

Must  be  laid  by  rule  of  uniformity,  n.  22.  Defined, 
n.  75.  Extent  of  the  power,  n.  73. 

DUTIES.  No  preference  shall  be  jriven  by  any  regulation  of  com 
merce  or  revenue  to  the  ports  of  one  State  over  those  of 
another ;  nor  shall  vessels  bound  to  or  from  one  State  be 

obliged  to  enter,  clear,  or  pay  duties  in  another 1 

Exports  to  be  free  from  all  duty,  n.  146.  "  Preference" 
defined,  n.  147.  Extent  of  this  inhibition  to  States,  Id. 
The  coasting  trade  encouraged,  n.  143. 

DUTIES  on  imports.  No  State  shall,  without  the  consent  of  tho 
Congress,  lay  any  imposts  or  duties  on  imports  or  ex 
ports,  except  what  may  be  absolutely  necessarv  for  exe 
cuting  Us  inspection  faws:  and  the  net  produce  of  all 
duties  and  imposts  laid  by  any  State  on  imports  or  exports 
shall  be  for  the  use  of  the  Treasury  of  the  United  States, 
and  all  such  laws  shall  be  subject  to  the  revision  and  con 
trol  of  the  Congress 1 

Defined,  n.  162.  Extent  of  the  necessity,  Id.  p.  162. 
Inspection  laws  defined,  p.  162. 

DUTIES.     In  case  of  the  death, removal,  resignation,  or  inability  of 
the  President  to  discharge  the  powers  and  duties  of  that 
office,  the  same  shall  devolve  on  the  Vice-President,  &c.. 
Act  of  Congress  for  filling  vacancies,  n.  172.    (See  Va 
cancies.) 

DUTIES.  The  President  may  require  the  opinion,  in  writing,  of  the 
principal  officer  in  each  of  the  executive  departments, 
upon  any  subject  relating  to  the  duties  of  their  respective 

offices -. 2 

How  the  "opinions"  are  delivered,  n.  176.  Various 
departments,  Id.  Jefferson's  opinion  on  this  subject, 
Id. 

DUTY  or  tax  might  have  been  imposed  on  imported  persons  (or 

slaves)  up  to  1SOS 1 

"Persons"  defined  and  discussed,  n.  139. 

DUTY.    No  tax  or  duty  shall  be  luid  on  articles  exported  from  any 

State 1 

No  duty  on  exports,  n.  146.    (See  Duties.) 

DUTY  of  tonnage.  No  State  shall,  without  the  consent  of  Con 
gress,  lay  any  duty  of  tonnage 1 

A  duty  '  n  imports  and  tonnage  defined,  notes  162, 163. 
"Tonnage11  defined,  Id. 

ECCLESIASTICAL  Establishments,  National,  prohibited,  n.  245. 

EFFECT  of  proceedings  of  States.  Congress  may,  by  general 
laws,  prescribe  the  effect  of  the  public  acts,  records,  and 
proceedings  of  States 4 

EFFECTS.  The  right  of  the  people  to  be  secure  in  their  effects 
against  unreasonable  searches  and  seizures  shall  not  be 
violated.  Amendments 4 

ELECTED.     Representatives  in  Congress  shall  be  chosen  or  elected 

every  second  year  by  the  people  of  the  several  States  ....       1 

"  People  of  the  se'veral  States''  defined,  n.  16.  Negroes 
not  of  '•  the  people,"  Id.  Qualifications  of  representatives, 
Id.  Qualifications  in  the  several  States,  n.  17,  pp.  60-65. 


Art.    sec.    cl. 


pp. 


86, 193 

28,94 

28,94 


9        6        81, 150 


10        2 


32, 161 


215       34,169 


2        1 


35, 171 


S3,  213 

44,  257 
22,  5S 


328 


INDEX. 


Art.  sec.    cl.  pp. 

Citizenship  does  not  necessarily  confer  the  suffrage,  n.  18. 

The  right  of  suffrage  defined,  Id. 
ELECTED.     Two   senators  from  each   State   shall    be   chosen  (or 

elected)  by  the  legislature  thereof,  for  six  years 1        3        1          24,  74 

Why  two  from"  each  State,  n.  28.     Why  elected  by  the 

legislature.  Id.  Mode  of  election,  Id.  Hamilton's  opin 
ion,  Id.  General  usage,  n.  29.  Cameron's,  Marian's,  and 

Stockton's  cases,  Id.     Act  of  Congress   with   regard   to 

elections,  n.  80.     In   case  of  a  vacancy,  Id.  p.  76.     The 

election  certified,  Id. 
ELECTION.     When  vacancies  happen  in  the  representation  from  a 

State,  the  executive  thereof  shall  issue  writs  of  election 

to  fill  them 124          23,72 

Basis  of  action  of  the  executive,  n.  25.      Incompatible 

offices  cause  a  vacancy,  Id.     How  vacancies  are  created,  Id. 
ELECTION  of  senators  prescribed  by  statute;  the  act,  n.  76. 
ELECTION  of  President  and  Vice-Presiderit  United  States.    The 

President  shall  hold  his  office  during  the  term   of  four 

years,  and,  together  with  the  Vice-President,  chosen  for 

the  same  term,  be  elected  as  follows : 211        32,102 

List  of  Presidents,   n.   166.     Electors  defined,   n.   107. 

Number  of  electors,  Id.     Qualifications  of  Vice- President, 

1686.    (See  pp.  163-169.) 
ELECTION.     President  and  Vice-President  United  States: — 

Each  State  shall  appoint,  in  such  manner  as  the  legisla 
ture  thereof  may  direct,  a  number  of  electors  equal  to  the 

whole  number  of  senators  and  representatives  to  which  the 

State  may  be  entitled  in  the  Congress ;  but  no  senator  or 

representative,  or   person  holding  an   otfice  of  trust  or 

profit  under  the   United   States,  shall   be   appointed  an 

elector 2       1        2       82,164 

Electors  defined,  n.  107.     Number  of  electors,  Id. 

The  electors  shall  meet  in  their  respective  States,  and 

vote  by  ballot  for  President  and  Vice-President,  one  of 

•whom,  at  least,  shall  not  be  an  inhabitant  of  the  same 

State  with  themselves.     They  shall  name  in  their  ballots 

the  person  voted  for  as  President,  and,  in  distinct  ballots, 

the  person  voted  for  as  Vice-President;  nnd  they  shall 

make  distinct  lists  of  all  persons  voted  for  as  President, 

nnd  of  all  persons  voted  for  as  Vice-President,  and  of  the 

number  of  votes  for  each;  which  lists  they  shall  sign  and 

certifv,  and  transmit  sealed  to  the  seat  of  government  of 

the  United  States,  directed  to  the  President  of  the  Senate. 

The   President  of  the  Senate   shall,  in  presence  of  the 

Senate  and  House  of  Representatives,  open  all  the  certi 
ficates,  and  the  votes  shall  then  be  counted :  the  person 

having  the  greatest  number  of  votes  for  President  shall 

be  the   President,  if  such  number  be  a  majority  of  the 

whole  number  of  electors  appointed ;  and  if  no  person  have 

such  majority,  then,  from  the  persons  having  the  highest 

numbers,  not  exceeding  three,  on  the  list  of  those  voted 

for  as  President,   the    House    of   Representatives    shall 

choose,  immediately,  by  ballot,  the  President.     But,  in 

choosing  the  President,  the  votes  shall  be  taken  by  States, 

the  representation  from  each  State  having  one  vote :   a 

quorum   for  tliis  purpose  shall  consist  of  a  member  or 

members  from  two-thirds  of  the  States,  and  a  majority  of 

all  the  States  shall  be  necessary  to  a  choice.     And  if  the 

House  of  Representatives  shall  not  choose  a  President, 

whenever  the  right  of  choice  shall  devolve  upon  them, 

before  the  fourth  day  of  March  next,  following,  then  the 

Vice-President  shall  act  as  President,  as  in  the  case  of  the 

death,  or  other  constitutional  disability  of  the  President. 

Amendments  12        1  46,164 

The   person  having  the   greatest   number  of  votes  as 

Vice-President  shall  be  the  Vice-President,  if  such  num 
ber  be  a  majority  of  the  whole  number  of  electors  ap 
pointed;  and  if  no  person  have  a  majority,  then  from  the 


INDEX  329 

''  '"*'''    ^fc^A^J  ^'k     SCC>         C^  PP« 

two  highest  numbers  on  the  list  the  Senate  shall  chooso 

the  Vice-President:  a  quorum  for  the  purpose  shall  consist 

of  two-thirds  of  the  whole  number  of  senators,  and   a 

majority  of  the  whole  number   shall  be  necessary  to  a 

choice.    Amendments  ..................................     12        2  47,166 

But  no  person  constitutionally  ineligible  to  the  office  of 

President,  shall  be  eligible  to   that  of  Vice-President  of 

the  United  States.    Amendments  ...........  .  ...........     12        3  47,166 

Congress  may  determine  the  time  of  choosing  the  elect 

ors,  and  the  day  on  which  they  shall  give  their  votes; 

which  day  shall  be  the  same  throughout  the  United  States.       2        1        4        84,  167 
In  case  of  the  removal  of  the  President  from  office,  or  of 

his  death,  resignation,  or  inability  to  discharge  the  powers 

and  duties  of  the  said  office,  the  same  shall  devolve  on  the 

Vice-President,  and  the  Congress  may  by  law  provide  for 

the  case  of  removal,  death,  resignation,  or  inability,  both 

of  the  President  and  Vice-President,  declaring  what  officer 

shall  then  act  as  President,  and  such  officer  shall  act  ac 

cordingly,  until  the  disability  be  removed,  or  a  President 

shall  be  elected  ........................................       2        1        5        34,  1C9 

ELECTIONS.    The  times,  places,  and  manner  of  holding  elections  for 

senators  and  representatives  shall   be  prescribed  in  each 

State  by  the  legislature  thereof,  but  the  Congress  may,  at 

any  time,  by  law  make  or  alter  such  regulations,  except 

as  to  the  places  of  choosing  senators  .....................       1        4        1          25,  83 

The   power  of  the  governor  of  the   State    o'ver,  n.  41. 

Meaning  of  "time,  place,  and  manner,"  Id.  and  n.  46.    The 

question  of  the  power  of  Congress,  with  regard  to,  n.  241. 
ELECTIONS.    Each  house  shall  be  the  judge  of  the  elections,  re 

turns,  and  qualifications  of  its  own  members  ..............       1        5        1          25,84 

"  Elections,  returns,  and  qualifications  "  defined,  notes  44, 

45,  46.  A  test  oath  necessitated  by  the  rebellion,  notes  46,  242. 

Arguments  pro  and  contra  the  disqualifications  of  partici 

pants  in  the  rebellion,  n.  46. 
ELECTIVE  franchise.     How  it  is  given  and  differs  in  all  the  States, 

notes  16,  17,  18.    It  is  a  power,  not  a  right,  n.  18.    "Under 

the   control  of  the  States,"  n.  41.    Doubts  thrown  upon 

this,  n.  17,    "NEBRASKA,"   n.  274.      When    the  constitu 

tions  shall  make  no  distinction  on  account  of  color  in  the 

elective  franchise,  notes  276,  283,  §  5.  The  right  of  the  States 

to  determine  under  the  14th  amendment  still  seems  to  bo 

left  unimpaired,  n.  280. 
ELECTOR.    No  senator  or  representative,    or  person   holding  an 

office  of  trust  or  profit  under  the  United  States,  shall  be 

appointed  an  elector  of  President  or  Vice-President  of  the 

UnitedStates  ...........................................       212        32,164 

ELECTORS.    The  qualifications  of    electors  of  representatives  in 

Congress  to  be  the  same  as  for  electors  of  the  most  nume 

rous  branch  of  the  State  legislature  ......................       1        2        1          22,  68 

The  subject  logically  considered,  n.  16,  pp.  59,  60.     The 

qualifications  of  electors  in  each  State,  n.  17,  pp.  60-64. 

No  uniformity  except  as  to  males,  and  the  age  of  21  years; 


the  necessity   of  uniformity  considered,  n.  17,  pp  64-65. 
The  right  of  the  States  to  define  claimed,  notes  41,  244,  27 
" 


274, 

p.  283."  Qualification  of,  in  rebel  States  on  the  reconstruc 
tion   measures,   without  distinction,   of   color,  excluding 
those  rebels  who  had  held  certain  offices,  n.  276,  pp.  2S3, 
288.  §  5,  6.   Of  delegates  to  the  reconstruction  conventions. 
For  officers  under  the  provisional  governments,  n.  276, 
p.  283,  §  6.    To  be  registered  and  how,  n.  276  (supplement 
ary  act),  p.  284,  §  1.    Approval  of  the  qualified.  Id.  §  6. 
Hoards  of  registration  to  ascertain  the  qualifications  of 
electors,  n.  276,  p.  287,  §  5.    The  disqualification  explained, 
Id.  §  6. 
ELECTORS  of  President  and  Vice-President  of  the  United  States. 

Appointment,  qualification,  time  of  choosing,  and  duties  of  ,    010        QO  IKA 
electors.     Amendments....  ...............  .  ..............  \  ,2.  2       f,  '??f 

Electors  defined  and  discussed,  n.  167.  Choice  of  the  electors  '  L* 


330  INDEX. 

Art  sec.    cL  pp. 

&  point  of  issue,  Id.    Numbers  and  apportionment  of  the 

electors,  Id.    When   they   meet,  n.  166.    Compared   with 

electors  for  legislators  and  members  of  Congress,  notes  17, 

18,  107.     Of  delegates  in  Congress  for  only  three  years 

under  tt)e  Confederation,  Art.  V.  p.  11. 
ELIGIBILITY  of  a  representative  in  Congress.     No  person  shall  be 

a  representative  who  shall  not  have  attained  to  the  age  of 

twenty-live  years,  and  been  seven  years  a  citizen  of  the 

United  States,  and  who  shall  not  when  elected  be  an  in 
habitant  of  that  State  in  which  he  shall  be  chosen 1        2        2          23,  66 

"Person11  defined,  n.  19.   Citizens  and  persons  not  the 

same,  notes  17,  18,  19,  220,  274     The  person  must  be  an 

inhabitant  of  the  State,  n.  19.     Qualifications  may  be  super- 
added,  notes  46,  242. 

ELIGIBILITY  of  a  senator  in  Congress.    No  person  shall  be  a  sen 
ator  who  shall  not  have  attained  to  the  age  of  thirty  years, 

and  been  nine  years  a  citizen  of  the  United  States,  and 

who  shall  not,  when  elected,  be  an  inhabitant  of  that  State 

for  which  he  shall  be  chosen 133          24,  7T 

Person  defined  as  in  note  19,  n.  35.      Shields  rejected  for 

want  of,  n.  85.     Qualifications  compared,  notes  46.  169,  p. 

188.     Have  been  superadded  by  test  oath,  notes  46,  242. 
ELIGIBILITY  of  electors  of  President  and  Vice-President  of  the 

United  Stales.      No  senator  or  representative,   or  person 

holding  an  office  of  trust  or  profit  under  the  United  States, 

shall  be  appointed  an  elector 212        32,164 

(See  note  167.)    No  person  eligible  to  office  under  the 

federal   government  who  cannot,  take  the  test  oath,  n.  242. 

Nor  to  practice  as  attorney,  n.  242.    This  unconstitutional, 

as  to  those  already  having  the  right,  n.  143,  p.  148,  n.  242. 
ELIGIBILITY  of  the   President  of  the   United  States.     No  person, 

except  a  natural  born  citizen,   or  a  citizen  of  the  United 

States  at  the  time  of  the  adoption  of  this  Constitution, 

shall  be  eligible  to  the  office  of  President:  neither  shall 

any  person  be  eligible  to  that  office  who  shall  not  have 

attained  to  the  age  of  thirty-five  years,  and  been  fourteen 

years  a  resident  within  the  United  States 2        1        4        34,16T 

A  natural  born  citizen  defined  (See  Citizen),  notes  17, 

18,  169,  274.     Every  person  burn  in  the   country  is,  at  the 

moment  of  birth,  primn  facie  a  citizen,  n.  169.     Few  of 

the  foreign  born  at  the  time  of  the  adoption  of  the  Consti 
tution  now  eligible,  n.  170.     Those  born  upon  purchased 

or  annexed  soil,  not  eligible,  n.  179.    The   President  must 

be  a  man,  n.  170.     Age  cannot  be  dispensed  with,  n.  171. 

Residence  defined,  n.  171. 

ELIGIBILITY  of  the  Vice  President  of  the  United  States.    No  per 
son  constitutionally  ineligible  to  the   office  of  President 

shall  be  eligible  to  that  of  Vice-President  of  the   United 

States.      Amendments 12        2  47,166 

ELIGIBILITY  of  delegates  in  the  conventions  of  the  rebel  States, 

n.  276.  p.  283,  §  5. 
KLLKEY,  WILLIAM.    Delegate  from   Ehode   Island.     Signed   Dec. 

of  Ind.  p.  7;  and  the  Articles  of  Confederation,  p.  21. 
EMTNEXT  domain.     All  contracts  are  subject  to  the  right  of  eminent 

domain  of  the  State,  n.  157,  p.  157.    The  States  must  not 

infract  the  national  right  of,  n.  89.     May  be  taken  for  pub 
lic  use,  n.  258. 
EMOLUME-NT.      No   person   holding  any  office   of  profit  or  trust 

under  the  United  States,  shall,  without  the   consent  of 

Coneress,  accept  of  any  present,  emolument,  office,  or  title 

of  any  kind  whatever  from  any  king,  prince,  or  foreign  State      19831, 152 
Office  defined,   n.    151.      Does   not  extend    to    private 

citizens,  n.  151,  p.  159.     The  acceptance  of  an  incompatible 

office  vacates  the  other,  notes  62,  63. 
E.MOLUMKNT  of  the  President  of  the  United  States.    The  President 

shall  receive  a  stated  compensation,  but  no  other  emolu 
ment  from  the  United  States,  or  either  of  them 2        1        6        34, 170 

Fired  at  $25,000  per  annum,  n.  173. 


INDEX. 


331 


Art.    sec.    cl. 


pp. 


EMOLUMENTS.  No  senator  or  representative  shall,  during  the 
time  for  which  he  was  elected,  be  appointed  to  any  civil 
office  under  the  authority  of  the  United  States,  which 
shall  have  been  created,  or  the  emoluments  whereof  shall 

have  been  increased,  during  such  time 1 

(See  Eligibility,  notes,  19.  35,  46,  169,  242.) 

ENABLING  acts.  Some  States  admitted  by  and  some  without,  n.  230. 
The  effect  of  Constitution  and  admission  is  to  annul  them, 

n.  230 

ENEMIES.  Treason  against  the  United  States  shall  consist  onlv  in 
levying  war  against  them,  or  in  adhering  to  their  enemies, 

giving  them  aid  and  comfort 331 

Treason  defined,  and  its  origin,  n.  215.  The  enemies 
are  those  who  levy  war.  Id. 

ENGAGEMENTS  entered  into.  All  debts  contracted  or  engagements 
entered  into  before  the  adoption  of  this  Constitution  shall 
be  as  valid  against  the  United  States  under  this  Constitu 
tion  as  under  the  Confederation 6  1 

This  clause  and  its  reason  considered,  n.  237. 
ENGLISH  laws.  For  abolishing  the  free  system  of,  p.  4. 
ENSURE  domestic  tranquillity.  The  Constitution  established  in 

order  to  insure  domestic  tranquillity,  «fec.     Preamble 

Means  peace  among  and  between  the  States,  n.  9.     (See 
Insure.) 
ENTER.     Vessels  bound  to  or  from  one  State  shall  not  be  obliged 

to  enter,  clear,  or  pay  duties  in  another 1        9        6 

Pilotage  fees  not  unconstitutional,  n.  148.     Port  dues  for 
the  benefit  of  a  State,  unconstitutional,  n.  162. 
ENTER.     No  State  shall  enter  into  any  treaty,  alliance,  or  confeder 
ation 1      10        1 

Because  this  is  a  national  power,  n.  152. 

ENTEK.  No  State  shall,  without  the  consent  of  Congress,  enter 
into  any  agreement  or  compact  with  another  State,  or  with 

a  foreign  power 1      10        2 

The  words  were  used  in  their  broadest  sense,  and  to  cut 
off  negotiations  with  foreign  nations,  n.  164. 

ENTITLED.  The  citizens  of  each  State  shall  be  entitled  to  all  the 
privileges  and  immunities  of  citizens  in  the  several 

States 4        2        1 

(See  Citizens,  notes  17,  18,  93,  169,  220,  221,  274.) 
The  citizen  going  into  another  State  is  entitled  to  all  the 
privileges.  <£c.,  of  the  other  citizens  of  that  State,  and  no 
mor*,  n.  222. 

ENUMERATED  Powers.  The  specially  granted  powers  were  not 
numbered  in  the  Constitution,  but  the  numerals  have  been 
prefixed  by  authors  for  convenience,  n.  74,  p.  51. 

(See  Numeration,  n.  268.) 

ENUMERATION  of  the  people  to  be  made  within  three  years  after 
first  meeting  of  Congress,  and  every  ten  years  thereafter, 

in  such  manner  as  they  shall  by  law  direct  1        2        3          23,67 

Tables  of  the  numbers  according  to  the  several  enumer 
ations,  n.  24,  pp.  68-71. 

ENUMERATION.  No  capitation  or  other  direct  tax  shall  be  laid, 
unless  in  proportion  to  the  census  or  enumeration  herein 
before  directed  to  be  taken 1  9  i  31,149 

Capitation  defined,  n.  144.  Taxes  on  lands  are  direct 
taxes,  n.  144.  They  must  be  by  the  rule  of  apportionment, 
notes  22,  72,  77,  81,  85,  144. 

ENUMERATION  of  rights.  The  enumeration  in  the  Constitution  of 
certain  rights  shall  not  be  construed  to  deny  or  dis- 

pange  others  retained  by  the  people.     Amendments 9  45.  268 

(See  Enumerated  Powers,  n.  74.)   Enumeration  defined, 
n.  25S.     Of  certain  rights  defined,  n.  268.    Deny  and  dis 
parage  defined.  Id. 
EQUAL  suffrage.    No  State,  without  its  consent,  shall  be  deprived 

of  its  equal  suffrage  in  the  Senate 5  40,  246 

Equal  in  no  two  States,  notes  17,  18.    Made  equal  in 


2    27, 90 

1   88, 211 

1   40, 247 
22,53 

6  81,150 
1  81,153 
82, 161 


332  INDEX. 

Art.    sec.    cl.         pp. 


the  rebel  States  without  regard  to  color,  n.  276.     (The  re 
construction  acts.) 

EQUITY.  The  judicial  power  shall  extend  to  nil  cases  in  law  and 
equity  arising  under  this  Constitution,  the  laws  of  the 
United  States,  and  treaties  made  or  which  shall  be  made 

under  their  authority ,       321        87,194 

Cases  in  equity  defined,  n.  200.  There  must  be  no  ade 
quate  remedy  at  law,  n.  '200. 

EQUITY.  The  judicial  power  of  the  United  States  shall  not  be  con 
strued  to  extend  to  any  suit  in  law  or  equity  commenced 
or  prosecuted  against  one  of  the  United  States  by  citizens 
of  another  State,  or  by  citizens  or  subjects  of  any  foreign 

State.     Amendments 11  46,269 

This  amends  the  first  section  of  the  third  article  so  as  to 
prevent  suits  against  the  States,  notes  205«,  270. 

ESCAPING.  Persons  held  to  service  or  labor  (or  slaves),  escaping 
into  another  State,  shall  be  delivered  up  on  claim  of  the 

party  to  whom  such  service  or  labor  may  be  due 4        2        8        89, 282 

Persons  and  State  defined,  n.  226.  Escaping  defined 
and  distinguished  from  carrying  by  the  master,  notes 
222,  227.  The  owner's  rights,  n.  222.  Delivered  up  con 
templates  a  summaiy  remedy,  n.  228.  This  clause  is  a 
treaty,  Id. 

ESTABLISH.    Cited  whenever  used  in  the  Constitution,  n.  104. 

ESTABLISH.  The  judicial  power  of  the  United  States  shall  be 
vested  in  one  Supreme  Court,  and  in  such  inferior  courts 
as  the  Congress  may  from  time  to  time  ordain  and  estab 
lish 3  1  86,189 

This  clause  discussed,  notes  195-197.  To  establish  is 
to  put  into  operation,  notes  12,  13,  243.  See  the  word 
on  the  text  to  notes  293-296;  and  Establishment^ 
notes  242-245. 

ESTABLISH  justice.    The  Constitution  formed  in  order  to  establish 

justice,  &c.     Preamble. 22,53 

Justice  defined  and  how  established,  n.  8. 

ESTABLISHMENT  of  the  Constitution.  We,  the  people  of  the 
United  States,  in  order  to  form  a  more  perfect  union,  es 
tablish  justice,  insure  domestic  tranquillity,  provide,  for 
the  common  defense,  promote  the  general  welfare,  and  se 
cure  the  blessings  of  liberty  to  ourselves  and  our  pos 
terity,  do  ordain  and  establish  this  Constitution  for  the 

United  States  of  America.     Preamble 22,53 

This  preamble,  why  consulted,  and  its  divisions,  n.  5. 
The  difference  from  the  Confederate  Constitution,  n.  5. 
"The  people"  defined,  n.  6.  A  more  perfect  union,  n.  7. 
Justice  defined.  Every  term  defined,  notes  6-13.  A  gov 
ernment  was  established,  1,  4,  S. 

ESTABLISHMENT  of  this  Constitution.  The  ratification  of  the  Con 
ventions  of  nine  States  shall  be  sufficient  for  the  establish 
ment  of  this  Constitution  between  the  States  so  ratifying 

the  same 7  41,252 

How,  when,  and  by  what  States  the  Constitution  was 
ratified  and  established,  notes  242,  243. 

ESTABLISHMENT  of  religion.  Congress  shall  make  no  law  respect 
ing  an  establishment  of  religion.  Amendments 1  43,254 

Establishment  here  means  a  system  of  religion  or 
established  church,  n.  245.  lieligion  defined  ;  all  religions 
tolerated,  n.  245. 

EXCESSIVE  bail  shall  not  be  required,  nor  excessive  fines  imposed, 
nor  cruel  and  unusual  punishments  inflicted.  Amend 
ments  8  45, 267 

Bail  defined,  n.  206.  What  punishment  is  not  excessive, 
n.  2<>6.  Disfranchisement  is  not  unusual  punishment, 
n.  267. 

EXCISES.     Congress  shall  have  power  to  lay  excises 1        8        1          28,  94 

Defined  and  discussed,  n.  77. 

EXCISES.  All  duties,  imposts,  and  excises  shall  be  uniform  through 
out  the  United  States 1  8  1  28,94 


INDEX. 


Art.  sec.    cl. 


8      17 


8      15 


This  nnformity  in  contradistinction  to  apportionment, 
n.  81. 

EXCLUSIVE.  The  admiralty  jurisdiction  is  exclusive,  and  the 
State  assumption  of  it  is  unconstitutional,  n.  203. 

The  power  to  regulate  commerce  is  exclusive,  and 
leaves  no  residuum,  n.  85.  Jurisdiction  of  the  Supreme 
Court  when  exclusive,  n.  210.  And  so  of  courts  under  the 
Constitution,  n.  211.  The  power  of  Congress  over  fugitive 
slaves  was  exclusive,  n.  227. 

EXCLUSIVE  rights  to  writings  and  discoveries  in  science  and  the 
useful  arts  may  be  secured  to  authors  and  inventors  for  a 

limited  time 1        8 

Copyrights,  how  secured,  n.  107.  Inventors  defined,  n. 
108,  p.  122.  Question  discussed,  n.  108. 

EXCLUSIVE  legislation  in  all  cases  whatsoever  shall  be  exercised 
by  Congress  over  such  district  (not  exceeding  ten  miles 
square)  as  may,  by  cession  of  particular  States  and  the  ac 
ceptance  of  Congress,  become  the  seat  of  the  government 

of  the  United  States 1 

District  of  Columbia  ceded  to  United  States,  n.  136. 
Limitation  of  this  power,  n.  137. 

EXECUTE.  To  provide  for  calling  forth  the  militia  to  execute  the 
laws  of  the  Union,  suppress  insurrections,  and  repel  in 
vasions 1 

Militia  defined,  n.  130.  Limitation  of  the  President's 
power,  Id.  When  the  militia  become  national,  Id.  Laws 
of  the  Union  defined,  n.  131.  Insurrections,  &c.,  defined, 
n.  132.  Defined,  notes  143,  156.  The  civil  law  definition, 
n.  156. 

EXECUTE.    The  President  is  required  to  take  an  oath  faithfully  to 

execute  the  office  of  President  of  the  United  States 2 

The  President  alone  required  to  take  this  oath,  n.  174. 
Scope  of  the  term  to  faithfully  execute,  n.  164,  No  one  to 
be  put  to  death  under  the  reconstruction  laws  without  the 
approval  of  the  President,  n.  276,  p.  282,  §  4. 

EXECUTED.  The  President  shall  take  care  that  the  laws  be  faith 
fully  executed 2  3 

The  meaning  and  extent  of  this  power,  n.  189. 

EXECUTION  of  the  powers  of  the  government.  Congress  shall  have 
power  to  make  all  laws  which  shall  be  necessary  and 
proper  for  carrying  into  execution  the  foregoing  powers  and 
all  other  powers  vested  by  this  Constitution  in  the  govern 
ment  of  the  United  States,  or  any  department  or  office 
thereof 

EXECUTION.  Before  the  President  enters  upon  the  execution  of 
his  office,  he  shall  take  the  following  oath  or  affirmation. 
(See  Oath.) 

EXECUTIVE  appointment  to  office,  whether  or  not  an  executive 
function  disputed,  n.  165 

EXECUTIVE  authority.  The,  of  any  State  shall  issue  writs  of  elec 
tion  to  fill  vacancies  that  may  happen  in  the  representa 
tion  of  such  State 124 

The  executive  may  receive  resignations  and  may  fill 
actual  vacancies  without  waiting,  n.  25.  Vacancies,  how 
created,  n.  25. 

EXEMPLIFICATIONS  of  office,  books,  &c. ;  how  to  be  certified,  n.  219, 
p.  221.  Decisions  on  the  statute,  n.  219. 

EXPEDIENT.  The  President  shall,  from  time  to  time,  recommend 
to  Congress  such  measures  as  he  shall  judge  necessary  and 

expedient 2        3 

Practice  of  sending  a  written  message  to  Congress, 
n.  187. 

EXPEL  a  member.  Either  house  of  Congress  may,  with  the  con 
currence  of  two-thirds,  expel  a  member 1  5  2 

A  member  may  be  expelled  for  an  often  se  contrary  to  no 
statute,  n.  49.  Kebel  senators  expelled,  n,  50. 

ExPBNDiTUBES.    A  regular  statement  and  account  of  the  receipts 


333 

PP. 


29, 121 


29,13 


1        7        35, 170 
86,183 

80, 138 
35, 170 

23, 72 


26,86 


334 


INDEX. 


Art.     sec.    cl.        pp. 
and  expenditures  of  all  public  money  shall  be  published 

from  time  to  time 197        31,151 

Variance  of  the  Confederate  States  Constitution,  n.  149. 
Creation  of  court  of  claims:  the  creditor's  remedy,  Id. 
EXPORTS.     No  duty  or  tax  shall  be  laid  on  articles  exported  from 

any  State 1        9        5        31,150 

This  wholly  takes  away  the  power  over  exports,  n.  146. 

It  was  stricken  out  of  the  Confederate  Constitution,  n.  146. 

EXPORTS,  &c.    No  State  shall,  without  the  consent  of  Congress, 

lay  an v  duty  on  imports  or  exports 1      10        2        32,161 

(See"  note  146.)    The  terms   defined,  notes  65-67.     Im 
ports,  or  duties  on  imports,  defined,  n.  164. 
Ex  POST  FACTO  law.    No  bill  of  attainder  OP  ex  post  facto  law  shall 

be  passed 193        31,146 

Defined,  notes  143,  156.     Relates  only  to  criminal  law, 
n.  143.  The  Missouri  expurgatory  oath  is  unconstitutional 
n.  143.     Defined  according  to  the  civil  law,  n.  156. 
Ex  POST  FACTO  law.     No  State  shall  pass  any  ex  pout  facto >  law. .       1      10        1        31,153 

Ex  post  facto  laws  defined,  notes  143,  156.  Limitation 
of  ex  post  facto  laws,  Id.  Attorney's  test  oath  and  expur 
gatory  oath  in  Missouri,  not  ex  post  facto  laws,  Id.  (See 
n.  242.) 

EXTRAORDINARY  occasions.  The  President  may,  on  extraordinary 
occasions,  convene  both  houses  of  Congress,  or  either 

of  them 2        3  86,183 

This  power  has  been  frequently  exercised,  n.  188. 

FACT  and  law.  The  Supreme  Court  shall  have  appellate  jurisdic 
tion  both  as  to  law  and  fact,  &c 322  37,204 

Not  to  grant  new  trials  upon  the  facts  since  the  seventh 
amendment,  notes  211,  2t'>3. 

FAITH  and  credit,  full,  to  be  given  to  public  acts,  records,  and  pro 
ceedings  of  States,  &c 4  1  38,213 

(See  'Act*,  Authentication,  Credit,  Judicial  Proceed- 
iny*,  Jud amen t*,  Records.)  That  credit  which  the  State 
itself  gives,  notes  218,  219,  which  exhaust  the  subject. 

FEDERAL  courts.  Can  only  issue  a  habenx  corpus  in  aid  of  their 
own  jurisdiction,n.  141,  p.  141;  in  all  cases  which  it  would 
reach  at  common  law,  p.  142.  State  courts  cannot  arrest 
their  writs,  n.  141.  p.  143. 

FEDERAL  judges  have  exclusive  jurisdiction  on  habeas  corpus 
when  the  applicant  is  imprisoned  by  authority  of  the 
United  State?,  n.  141,  p.  142. 

FELONIES.  Congress  shall  have  power  to  define  and  punish  pira 
cies  and  felonies  committed  on  the  high  seas,  and  offenses 

against  the  law  of  nations  1        8      10        29,124 

To  define,  to  punish,  piracy,  and  felony,  defined,  notes 
110,  111,  112.  113.  192, 193. 194.    The,  civil  and  not  the  com 
mon  law  definition  adopted,  n.  113.     Misdemeanor  used  in 
contradistinction  to  felony,  n.  194.     (See  ()ffenxe,$,  n.  194.) 
This  power  under  the  Confederation.  Art.  IX.  p.  14. 

FELONY     Members  of  Congress  may  be  arrested  for  felony 161          26,88 

The  arrest  may  be  for  any  indictable  offense,  n.  56. 

FELONY.     A    person    charged    with,   fleeing  from    one    State   to 

another,  to  be  delivered  up  on  demand 4        2        2        38,229 

A  person  means  any  one  who  has  committed  a  felony  or 
crime,  n.  233.  The  indictment  is  conclusive  of  this,  n. 
223.  Those  who  have  been  guilty  of  felony  at  common 
law  disfranchised  by  the  reconstruction  laws,  n.  176.  §  5. 

FEW,  WILLIAM.  Deputy  from  Georgia.  Signed  this  Constitution, 
p.  42. 

FIELD,  STKPHEK  J.  Associate  Justice  of  the  Supreme  Court, 
n.  197.  p.  192. 

FILLMORE.  MIM.A.RD.   Vice-President,  n  37;  and  President,  n.  166. 

FINKS.  Excessive  bail  shall  not  be  required,  nor  excessive  fines 
imposed,  nor  cruel  and  unusual  punishments  inflicted. 

Amendments 8  45,267 

A  fine  of  fifty  dollars  and  three  months'  imprisonment 


INDEX. 


335 


for  violating  the  liquor  law  is  not  excessive,  n.  267.  Dis- 
fninchisemerit  is  not  unusual  punishment,  n.  267.  Ot  ton 
thousand  dollars  for  rtiuvfcardfag  the  tenure  of  office  law, 
n.  184,  pp.  180,  181,  §  5,  6,  9. 

FITZPATRICK,  BENJAMIN.  Presiding  officer  of  the  Senate,  n.  38, 
p.  81. 

FITZSIMONS.  THOMAS.  Deputy  from  Pennsylvania.  Signed  this 
Constitution,  pp.  42,  252. 

FLORIDA.  Qualifications  of  voters  in.  n.  17,  p.  60.  Entitled  to 
one  representative,  n.  24,  p.  69.  Number  of  inhabitants, 
n.  24,  pp.  69.  70.  Did  not  vote  in  Presidential  election  of 
1864,  n.  167.  Assigned  to  fifth  judicial  circuit,  n.  191. 
Inhabitants  made  citizens,  n.  220,'  p.  222,  §4.  Admitted 
into  the  Union,  n.230.  Ratified  13th  amendment,  n.  274, 
and  rejected  14th,  n.  275.  One  of  the  rebel  States,  n  27«, 

?.  282,  §  1.      Government  declared  provisional,   n.  276,  p. 
S6,  §1.     Held  convention   in,  n.  277.     Kegistered  voters 
in,  n.  278. 

FLOYD,  WILLIAM,  of  New  York.     Signed  the  Dec.  of  Tnd.  p.  7. 
FOOTE,  SOLOMON.     Presiding  officer  of  the  Senate,  n.  38,  p.  81. 
FOREIGN  birth.    The  power  of  naturalization  is  only  applicable  to 

persons  of,  n.  274,  p.  276. 

FOREIGN  coin.    Congress  shall  have  power  to  coin  money,  regulate 
the  value  thereof,  and  of  foreisn  coin  ................... 

To  coin  money  and  regulate  defined,  notes  97.  96.  99. 
Congress  has  always  exerciser  the  power,  n.  100.  As  a 
legal  tender  considered,  notes  82,  84,  97,  155.  First  legal- 
tender  act  was  in  favor  of,  n.  155. 


Art  sec. 


pp. 


FOREIGN  extradition  jurisdiction  is  purely  political,  n.  225. 

tion,  Dec.  of 
FOUEIGN  nations.     Congress  shall  have  power  to  reg 


FOREIGN,  jurisdiction,  to  our  Constitution, 


f  Ind.  p.  4 


c.  of  Ind.  p.  4 
r  to  reulate  com 
merce  with  foreign  nati 

To   regulate   defined,   85.      Commerce,   86     Commerce 
•with  foreign  nations,  between  citizens  of  the  United  States, 
and   citizens  or  subjects  of  foreign   governments,  n.  87 
This  power  is  complete  in  itself,  n.  87,  p.  106. 

FOREIGN  power.     No  State  shall,  without  the  consent  of  Congress, 
enter  into  any  agreement  or  compact  with  another  State, 
or  with  any  foreign  power  ............  ................... 

Agreement  or  compact  defined,  n.  164.     This  prohibi 
tion  is  political.  Id.     It  was  intended  to  cut  off  all  nego 
tiations  and  intercourse  between  the  State  authorities  and 
fumtrii  nations,  n.  164, 

FOREIGN   State.    No   title  of  nobility  shall   be   granted   by   the 
United  States,  and  no  person  holding  any  office  of  profit 
or  trust  under  them,  shall,  without  the   consent  of  the 
Congress,  accept  of  any  present,   emolument,   office,   or 
title,  of  any  kind  whatever,  from  any    king,    prince,  or 
foreignState  ............................................       1 

Office  defined  ;   does   not  extend  to    priv&te   citizens, 
'  n.  151. 

FOREIGN  State.    The  judicial  power  of  the  United  States  shall  not 
be  construed  to  extend  to  any  suit,  in  law  or  equity,  com 
menced  or  prosecuted  against  one  of  the  United  States  by 
citizens  of  another  State,  or  by  citizens  or  subjects  of  any 
foreign  State.     Amendments  ............................     11 

This  is  amendatory  of  the  second  section  of  the  third 
article,  notes  205«,  270.     To  prevent  States  being  sued  by 
citizens  or  foreigners,  n.  270. 

FOREIGN  States,  citizens,  or  subjects.    The  judicial  power  shall 
extend  to  controversies  between  a  State,  or  the  citizens 
thereof,  and  foreign  States,  citizens,  or  subjects  ..........       3 

Oulv  where  the  State  is  plaintiff  or  defendant  in  error, 
205a,  "270.  The  history  of  the  subject.  2-  ix/..  The  interest 
of  the  State  must  appear  of  record.  205a,  270. 
FORFEITURE.  No  attainder  of  treason  shall  work  corruption  of 
blood  or  forfeiture,  except  during  the  life  of  the  person 
attainted  ...............................................  3 


85        29,114 


183        28,105 


1      10 


32,161 


98 


31,152 


46,  2C9 


37,  194 


38,218 


336  INDEX. 

Art.  sec.    cl.          pp. 

(See  A  ttainder  and  Corruption  of  Blood,  n.  217.)  Felony 
caused  forfeiture  of  lands  or  goods  at  common  law,  n.  11?. 
A  pardon  does  not  restore  oflices  forfeited,  nor  property  nor 
interests  vested  in  others,  n.  177,  p.  174. 

FORM  a  more  perfect  union.     The  Constitution  established  in  ordei 

to  form  a  more  perfect  union.     Preamble 

Stronger  than  the  Articles  of  Confederation,  n.  7. 

FORTS,  <fec.  Congress  shall  have  power  to  exercise  exclusive  legis 
lation  over  forts,  &c 1  8  17 

This  carries  the  right  to  punish  for  offenses  committed 
within  the,  n.  137. 

FOSTER,  LAFAYETTE  8.     Presiding  officer  of  the  Senate,  n.  38,  p.  81. 

FRANCHISE,  ELECTIVE.  Citizenship  has  no  connection  with  fran 
chise  or  voting,  eligibility  to  office,  or  political  rights,  n. 
275,  p.  275,  notes  16,  18.  Curtailment  of  to  curtail  repre 
sentation,  n.  280.  The  probable  effect  of  this  upon  the 
States,  Id. 

FRANKLIN,  BENJAMIN.  Deputy  from  Pennsylvania.  Signed  the 
Dec.  of  Ind.  p.  7;  and  this  Constitution,  pp.  42,  252. 

FRANKLIN,  JESSE.    Presiding  officer  of  the  Senate,  n.  38,  p.  79. 

FREE  and  independent  States.    The  thirteen  colonies  declared,  p.  6. 

FREE  State.  A  well-regulated  militia  being  necessary  to  the  secu 
rity  of  a  free  State,  the  right  of  the  people  to  keep  and 

bear  arms  shall  not  be  infringed.     Amendments 2  43,266 

This  clause  has  reference  to  a  free  government,  n.  249. 

FREEDMEN.  Laws  for  the  protection  of,  enacted  under  13th 
amendment,  n.  174. 

FREEDOM  of  speech  and  the  press.  Congress  shall  make  no  law 
respecting  an  establishment  of  religion,  or  prohibiting  the 
free  exercise  thereof;  or  abridging  the  freedom  of  speech 

or  of  the  press.    Amendments 1  43,  254 

Freedom  defined,  n.  249.  And  of  the  press,  u.  247.  The 
people  and  right  of  petition  denned,  n.  248. 

FUGITIVES  from  justice.  A  person  charged  in  any  State  with  trea 
son,  felony,  or  other  crime,  who  shall  flee  from  justice,  and 
be  found  in  another  State,  shall,  on  demand  of  the  execu 
tive  authority  of  the  State  from  which  he  fled,  be  delivered 
up,  to  be  removed  to  the  State  having  jurisdiction  of  the 

crime 

Person  defined ;  flee  defined,  n.  222.  A  fugitive  from 
lustice  may  be  arrested  and  detained  until  requisition, 
n.  224.  The  duty  of  the  governor,  Id.  The  Supreme  Court 
cannot  force  the  governor.  Id.  The  fugitive  must  be 
claimed  as  such,  and  must  be  one,  n.  224.  Shall  be  deliv 
ered  up  defined,  n.  225.  Sufficient  warrant  to  arrest  a 
fugitive,  Id.  Cannot  be  surrendered  after  acquittal  or 
pardon,  Id. 

FUGITIVE  slaves.  No  person  held  to  service  or  labor  in  one  State, 
under  the  laws  thereof,  escaping  into  another,  shall,  in 
consequence  of  any  law  or  regulation  therein,  be  discharged 
from  such  service  or  labor,  but  shall  be  delivered  up  on 
claim  of  the  party  to  whom  such  service  or  labor  may  be  due.  428  89,232 

Person  defined,  n.  226.  State  extends  to  Territories  and 
District  of  Columbia,  n.  226.  Escape  defined,  n.  227.  Ap 
prentices  included,  Id.  The  President  could  cause  the 
delivery  of  fugitive  slaves  among  the  Indian  tribes,  Id. 
The  owner's  power  over  the  fugitive,  Id.  The  power  of 
Congress  exclusive  on  the  subject,  n.  227,  p.  233.  The 
right  to  reclaim  fugitive  slaves  secured,  Id.  The  delivery 
contemplates  summary  proceedings,  n.  228.  This  clause 
was  a  treaty,  Id. 

OAILLARD,  JOHN.    Presiding  officer  of  the  Senate,  n.  38,  p.  79. 
GAUGING.     Instruments  to  be  procured  for,  n.  102,  p.  117. 
GENERAL.     The  highest  grade  in  the  army,  n.  124. 


GBNBRAJL  laws.  Congress  may,  by  general  laws,  prescribe  the 
manner  in  which  the  public  acts,  records,  and  judicial  pro 
ceedings  of  States  shall  be  proved,  and  the  effect  thereof.  .41  88,  213 


INDEX.  337 

Art.  sec.    cl.          op. 

The  several  acts  and  decisions  thereon,  which  have  been 
prescribed  under  this  clause,  n.  219. 
GENERAL  welfare.    The  Constitution  established  to  promote  the 

general  welfare.     Preamble 22,  53 

This  clause  defined,  n.  10.     Was  stricken  out  of  the  Con 
federate  Constitution,  n.  5. 
GENERAL  welfare.     Congress  shall  have  power  to  provide  for  the 

general  welfare 1        8        1          28,94 

Judge  Story's  reading  of  this  clause,  n.  80.    Mr.  Jeffer 
son's  construction,  n.  80. 

GEORGIA.     Signed  the    Dec.  of  Ind.   p.   8 ;    the   Articles  of  Con 
federation,  pp.  9,  21  ;  and  the  Constitution  of  the  United 

States,  pp.  48, 252.     Qualifications  for  voters  in,  n.  17,  p.  60. 

GEORGIA.   Entitled  to  three  representatives  in  the  first  Congre4s.       123          23,67 
Seven  representatives  by  the  census  of  1860.  n.  24,  p.  69. 

Population  through  each  d'ecade,  n.  24.  pp.  69,  70.     Did  not 

vote  in  the  presidential  election  of  1864,  n.  167.     Assigned 

to  fifth  judicial  circuit,  n.  197,  p.  192.     Ceded  Alabama  and 

Mississippi,  notes  230,  231,  282.     Ratified  the  13th  consti 
tutional  amendment,  n.  274,  and  rejected  the  14th,  n.  275. 

Declared  one  of  the  rebel  States,  n.  276,  p.  282.     Civil  gov 
ernment   subject  to  military   control,  n.   274,  p.  286,  §  1. 

Held  convention,  277.      Registered  voters  in.  Id. 
GERRY,  ELBRIDGE,  of  Mass.    Signed  the  Dec.  of  Ind.,  p.  7;   and 

Articles  of  Confederation,  p.  21.     Vice- President,  n.  37. 
GILMAN,  NICHOLAS.     Deputy  from  New  Hampshire.    Signed  this 

Constitution,  pp.  42,  252. 
GOD,  ALMIGHTY.     (See  Almighty  God,  n.  5.) 
Goo,  the  act  of,  not  to  aflvct  the  termination  of  services,  n.  274. 
GOLD  and  silver  coin.     No  State  shall  make  any  thing  but  gold  and 

silver  coin  a  tender  in  payment  of  debts. 1       10        1        81,153 

Remark  upon  this,  n.  152.     But  Congress   may  make 

paper  a  legal   tender,  notes  83,  97,  98,99,  100,  155.     This 

denied,  notes  97-100.    Examples  of  paper  legal   tenders, 

n.  83.     The  first  legal-tender  act  was  in  favor  of  foreign 

coin,  n.  155. 
GOOD  behavior.     The  judges,  both  of  the  Supreme  and  inferior 

courts,  shall  hold  their  otlices  during  good  behavior 311        86,189 

That  is  for  life  or  until  impeachment,  notes  191, 192,  193, 

194.  197.    The  precedents  of  impeachment  for  want  of, 

n.  194. 

GORHAM,  NATHANIEL,  of  Mass.  Signed  the  Constitution,  pp.41,  252. 
GOVERNING  the  militia.     Congress  shall  have  power  to  provide  for 

governing  such  part  of  the  militia  as  may  be  employed  in 

the  service  of  the  United  States 1        8      16        29,135 

This  power  defined,  n.  184,     Power  of  the  President 

over,  notes  134,  135. 
GOVERNMKNT.     The  Constitution  created  a,  not  a  mere  compact, 

Pref.  p.  viii.  notes  2,  4.      Cannot  take   the   rights  of  the 

citizen  away,  except  by  due  course  of  law,  n.  257.    Grand 

juries  hear  the  evidence  of  the  government  only,  n.  233. 

Reasons  for   the  exclusive  in  the   District  of  Columbia, 

n.  136.     How  it  is  changed  by  abolishing  slavery,  n.  274. 

Changes  in  the,   silent  and  conventional,  n.  286,   p.  293. 

The  fallacy  that  the  President  is  the  government,  Id.  The 

decisions    and   influence  of  the  judicial  department   of, 

Id.  294.    The  revolutions  which  have  marked  the  history 

will  be  found  where,  Id.  p.  294. 
GOVERNMENT.    Congress  shall  have  power  to  make  rules  for  the 

government  and  regulation  of  the  land  and  naval  forces...       1        8      14        29,13^ 

These  rules,  how  made  and  where  found,  n.  129. 
GOVERNMENT  of  the  United  States.     Congress  shall  have  power  to 

make  all  laws  which  shall  be  necessary  and  proper  for 

carrying  into  execution  the  foregoing  powers,  and  all  other 

powers  vested  by  this  Constitution   in  the  government 

of  the   United    States,   or    in  any   department  or  office 

thereof 1        8      IS        80, 133 

(See  power  discussed,  notes  71, 128.)  Does  not  mean  abso- 


338 


INDEX. 


Art.  see.    cl. 


pp. 


lately  necessary,  n.  1.98.      This  enlarges,  does  not  limit, 

n.  138.    Necessary  discussed,  n.  138.     Callmun's  definition, 

n.  228.     Compared  with  other  subjects,  notes  262,  264,  269; 

with  "  appropriate  "  in  the  thirteenth  amendment,  n.  274, 

p.  2T6.     (See  note  46.) 
GOVERNMENT.     Congress  shall  make  no  law  abridging  the  right  of 

the  people  peaceably  to  assemble  and  to  petition  the  gov 
ernment  for  a  redress  of  grievances.     Amendments 1  43,254 

The  people  used  in   the  broadest   sense,  n.  248.    The 

right  of    petition    and    the    extent,   to  the  government, 

n.  248. 
GOVERNMENT.     Republican    form   of,  guaranteed.      The    United 

States   shall   guarantee  to  every   State   in    the   Union   a 

republican  form  of  government 4        4        1        89,242 

The  duty  is  on  the  government;  Congress  to    decide 

what  is  the  State  government,  n.   233.     Guarantee    and 

every    State   defined,  n.  233,  pp.   242.  286.      Republican 

form  of,  defined  and  discussed,  n.  248.  p.  243.     No  legal 

State  governments  exist  in  the  ten  rebel   States,  n.  276, 

p.  282,  preamble.     Held  subject  to  the  wiil  of  the  military 

commanders  and  of  Congress,  n.  284,  p.  286,  §  1.     Power 

of  the  military  commanders  to  remove  the  officers  of  the 

so-called,  n.  274,  pp.  286,  287,  §  2.     To  remove  all  who  are 

disloyal    to    the    government  of  the    United   States  or 

oppose  reconstruction,  Id.  §  4. 

GOVERNMENT.     Seat  of  government  established 1        8      17        30,136 

Ceded  by  Maryland  and  Virginia,  n.  137. 
GRAIN.     A  weight  of  the  metric  system,  n.  102,  p.  118,  §  2. 
GRAND  jury.     No  person  shall  be  held  to  answer  for  a  capital  or 

otherwise  infamous  crime,  unless  on   a  presentment  or 

indictment  of  a  grand  jury,  &c.     Amendments 5  44,258 

Slaves  were  not  persons  within   the  meaning  of  this 

clause,  n.  2a3.    Capital,  &c.,  crime  defined,  n.  253.     Pre 
sentment  and  indictment  defined,  Id.     Grand  jury  not  less 

than  twelve  nor  more  than  twenty -three,  n.  253.    Regu 
lated  by  statute,  Id. 

GRANT.  No  State  shall  grant  any  title  of  nobility 1      10        1        31,153 

GBANT.    The  President  shall  have  power  to  grant  reprieves  and 

pardons  for  offenses  against  the  United  States,  except  in 

cases  of  impeachment 2        2        1        85,171 

Reprieves  and  pardons  defined  and  discussed,  n.  177.    To 

grant  a  reprieve  is  to  withdraw  a  sentence  of  death  for  a 

time,  n.  177. 

GRANT,  ULYSSES  S.     General  of  the  United  States  army,  n.  124. 
GRANTED  powers.     All  legislative  powers  granted  shall  be  vested 

in  a  Congress  of  the  United  States Ill          22,58 

Legislative  power  defined,  n.  14.     Congrn  ss  defined  and 

discussed,  n.  15.     The  wisdom  of  this  division  of  power. 

n.  15. 
GRANTING  commission?.     The  President  shall  have  power  to  fill 

up  all  vacancies  that  may  happen  during  the  recess  of  the 

Senate,  by  granting  commissions  which  shall  expire  at  the 

end  of  their  next  session 223          3G,1S2 

This  subject  discussed   and  compared  with   the    Civil 

Rights  Bill,  n.  185.     How  the  vacancies  may  occur,  Id. 

How  long  these  commissions  last,  n.  186.  Limitation  of  the 

power,  n.  184,  p.  180,  §  3. 

GRANTS  of  States.     The  judicial  power  shall  extend  to  cases  be 
tween   citizens  of  the  same  State  claiming  lands  under 

grants  of  different  States ...      3        2        1        87,194 

GRIER,  ROHKRT  C.    Associate  Justice  of  the  Supreme  Court,  n. 

197. 
GRIKVANCES.     Congress  shall  make  no  law  abridging  the  right  of 

the  people  peaceably  to  assemble  and  to  petition  the  gov 
ernment  for  a  redress  of  grievances.     Amendments 1  43,254 

Must  be  determined  by  the  power  of  the  government  to 

afford  the  redress,  n.  248. 
GROW,  GALU&HA  A.    Speaker  of  the  House,  n.  26,  p.  73. 


INDEX.  339 

Art.    sec.     cl.         pp. 
GUARANTY.    The  United  States  shall  guaranty-  to  every  State  in 

this  Union  a  republican  form  of  government  .............       4        4  39,242 

Guaranty  defined,  n.  283.    (See  Government.}    Every 
State  extends  also  to  inchoate  States,  n.  233. 
GWINNETT,  BUTTON,  of  Georgia.    Signed  the  Dec.  of  Ind.  p.  7. 

HABEAS  CORPUS.    The  privilege  of  the  writ  of  habeas  corpus  shall 
not  be  suspended,  unless  when,  in  cases  of  rebellion  or 
•invasion,  the  public  safety  may  reqnire  it  ................       192        30,140 

Privilege  defined,  n.  140.  When  the  President  may  sus 
pend  it,  or  disobey  the  writ,  notes  140,  162.  Ilabens  corpus 
defined,  n.  141.  Congress  alone  may  suspend  the  writ, 
n.  141.  Denied,  n.  140.  When  it  maybe  issued  by  the 
federal  courts,  n.  141,  p.  141.  When  the  State  courts  can 
not  release  under  it,  n.  141.  p.  142.  Not  when  committed 


by  the  federal  government,  n.  141,  p.  143.  The  act  of  1863, 
suspending  the  writ,  Id.  His  proclamation  suspending  the 
writ,  Id.  The  courts  judicially  noticed  the  end  of  the  re 


bellion,  n.  141,  p.  144.     The  writ  in  favor  of  the  assassins 

disobeyed,  Id.     The  writ  the  remedy  for  false  imprison 

ment,  "id.     When  f  >r  contempts,  Id.    The  laws  of  Pennsyl 

vania  about,  n.  141,  p.  145.    The  demarcations  between  the 

federal  and  State  governments  defined,  n.  141,  pp.  148,  149. 

The  distinction  between  process  and  imprisonment,  Id. 

The  rights  of  the  citizen  to  claim  the  benefit  of  the  writ  of 

habeas  corpus  is  an  immunity,  n.  '221,  p.  226. 
HALT,.  LYMAN,  of  Georgia.     Signed  Dec.  of  Ind.  p.  8. 
HAMILTON,  ALEXANDER,  of  N.  Y.     Signed  the  Constitution,  p.  42. 
HAMLIN,  HANNIBAL.    Vice-President  of  United  States,  n.  37. 
HANCOCK,  JOHN,  of  Massachusetts.     Signed   Dec.   of  Ind.  p.  7* 

and  Articles  of  Confederation,  p.  21. 
HANSON,  JOHN,  of  Maryland.    Signed  Ai  tides  of  Confederation, 

p.  21. 
HAPPEN.     When  vacancies  happen  in  the  representation  from  any 

State,  the  executive  authority  thereof  shall  issue  writs  of 

election  to  fill  such  vacancies  ...........................       1        2        4         23.  714 

The  governors  may  act  without  waiting  for  the  house  or 

waiting  for  a  resignation  of  the  vacancy  really  exist,  n.  45. 
HAPPEN.     When  vacancies  happen,  by  resignation  or  otherwise, 

during  the  recess  of  the  legislature  of  any  State,  the  exec 

utive  thereof  may  make  temporary  appointments,  &c.   ...       1        8        2          i.3,76 
The  vac  mcy,  how  it  happens,  n.  82.     The  executive  can 

not  appoint  before  the  vacancy  actually  happens,  n.  33. 
HAPPEN.    The  President  shall  have  power  to  fill  up  all  vacancies 

that  may  happen  during  the  recesf.  of  the  Senate,  &c  ......       224        ;  6,  182 

Vacancies,  happen,  &c.,  defined    and   discussed,  n.  185. 

The  power  limited  by  the  tenure  o.  office  bill,  n.  184,  p.  18Q, 

§  3. 

HARNETT,  CORNS.,  of  N.  C.    Signed  Articles  of  Confederation,  p.  21. 
HAHRISON.  THOMAS,  of  Virginia.     Signed  Dec.  of  Ind.  p.  7. 
HARRISON,  WILLIAM  H.    President,  n.  166,  p.  HW. 
HART,  JOHN,  of  New  Jersey.     Signed  Dec.  of  Ind.  p.  7  ;  and  Arti 

cles  of  Con-federation,  p.  21. 

HARVTE.  JOHN,  of  Virginia.    Signed  Articles  of  Confederation,  p.  21 
HEADS  of  Departments.     The  President  may  require  the  opinion, 

in  writing,  of  the  principal  officer  in  each  of  the  executive 

departments,  upon  any  subject  relating  to  the  duties  of 

their  respective  offices  ..................................       221        85,171 

What  are  these  cabinet  departments,  n.  176.    The  prac 

tice  as  to  the  opinions,  Id. 
HEADS  of  Departments.    The  Congress  may,  by  law,  vest  the  ap 

pointment  of  such  inferior  officers  as  they   think  proper, 

in    the    President  alone,  in   the   courts  of  law,  or  in   the 

heads  of  departments  ...................................       222        35,174 

Who  are  such  inferior  officers,  n.  183. 

HKWF.S.  JoSKi'ii,  of  North  Carolina.    Signed  Dec.  of  Ind.  p.  8. 
HKYWAKD,  Jr.,  THOMAS,  of  South  Carolina.   Signed  Dec.  of  Ind. 
p.  8  ;  and  Articles  of  Confederation,  p.  21. 


340 


IKDEX. 


Art.    sec.    cl. 


HIGH  crimes  and  misdemeanors.  The  President,  Vice  President, 
and  all  civil  officers  of  the  United  States,  shall  be  removed 
from  office  on  impeachment  for,  and  conviction  of,  treason, 

bribery,  or  other  Inch  crimes  and  misdemeanors 2 

Confined  strictly  to  civil  officers,  n.  191.  Senators  are 
not  civil  officers,  Id.  Treason  and  bribery  defined,  Id. 
High  crimes  denned,  n.  193.  Misdemeanors  defined  and 
distinguished,  n.  194.  The  whole  question  and  prece 
dents  considered,  n.  194. 

HOLTON,  SAMUEL,  of  Mass.  Signed  Articles  of  Confederation,  p.  21. 

HONOR.  Judgment  in  cases  of  impeachment  shall  not  extend 
further  than  to  removal  from  office,  and  disqualification  to 
hold  and  enjoy  any  office  of  honor,  trust,  or  profit,  under 

the  United  States 1 

Judgment  defined,  n.  40.  Whether  it  shall  be  less, 
Id.  Punishment  touches  neither  person  nor  property, 
n.  40.  (See  notes  39,191,192,193  194.)  The  President 
cannot  release  the  judgment  by  pardon.  Art.  II.  See.  2, 
Cl.  1,  n.  177. 

HOOPEK,  WILLIAM,  of  North  Carolina.    Signed  Dec.  of  Ind.  p.  8. 

HOPKINS,  STEPHEN,  of  Rhode  Island.     Signed  Dec.  of  Ind.  p.  8. 

HOPKINSON,  FRANCIS,  of  New  Jersey.     Signed  Dec.  of  Ind.  p.  7. 

HOSMER,  TITUS,  of  Conn.     Signed  Articles  of  Confederation,  p.  21. 

HOUSE.  No  soldier  shall,  in  time  of  peace,  be  quartered  in  any 
house  without  the  consent  of  the  owner,  nor  in  time  of  war, 
but  in  a  manner  to  be  prescribed  by  law.  Amendments  .  2 

His  house  is  his  castle,  n.  25.  The  occupant  is  the  owner 
for  this  purpose,  Id.  Soldier  and  quarter  defined,  Id. 

HOUSE  of  Representatives.    Congress    shall  consist  of   a  Senate 

and  House  of  Representatives 1 

Only  one  house  under  the  Articles  of  Confederation,  Art. 
V.  p.  10.  (See  Congress.)  Congress  defined,  n.  15.  Wisdom 
of  the  division,  n.  15. 

HOUSE  of  Representatives.  Members  of  the  House  of  Represen 
tatives  chosen  every  second  year  by  the  people 

House  defined,  n.  16.  The  people  defined,  n.  16.  Com 
pared  with  electors,  citizens,  &c.  notes  16,  17,  18,  21,  93, 
220,  274.  Interpolations  by  the  Confederate  Constitution, 
n.  16,  p.  59.  (See  Citizens,  notes  220,  274.)  How  chosen 
under  the  articles  of  Confederation,  Art.  V.  p.  10. 

HOUSE  of  Representatives,  members  of  the.  (See  Representa 
tives.) 

HOUSE  of  Representatives.  Qualifications  of  electors  of  members 
of  the  House  of  Representatives,  the  same  as  for  electors 

of  the  most  numerous  branch  of  the  State  legislature 1 

Qualifications  defined,  n.  16,  pp.  59,  60.  The  qualifica 
tions  in  each  State,  alphabetically  arranged,  n.  17,  pp. 
60-64.  No  uniformity  of  qualifications  but  in  sex  and  ase, 
n.  17,  p.  65.  Citizenship  does  not  give,  nor  the  want  of 
it  take  away,  the  right  to  vote,  n.  18. 

HOUSE  of  Representatives  shall   choose  their  Speaker  and  other 

officers 1 

Speaker  defined,  his  eligibility  to  the  Presidency,  n.  26. 
List  of  Speakers,  n.  26,  p.  73. 

HOUSE  of  Representatives  shall  have  sole  power  of  impeachment..      1 

We  must  look  to  the  common  law  for  the  definition  of 
impeachment,  n.  27.  Impeachment  defined  and  discussed, 
notes  27,  39,  191,  192,  193. 

HOUSE.  Each,  shall  be  the  judge  of  the  elections,  returns,  and 
qualifications  of  its  own  members,  and  a  majority  shall 
constitute  a  quorum  to  do  business;  but  a  smaller  number 
may  adjourn  from  day  to  day,  and  may  be  authorized  to 
compel  the  attendance  of  absent  members  in  such  manner 

and  under  such  penalties  as  that  house  may  provide 1 

Elections  defined,  n.  44.  The  returns  prima  facie 
evidence,  n.  45.  Qualifications  defined  and  discussed,  and 
the  issues  between  the  President  and  Congress  stated, 
n.  46,  pp.  84,  85,  86. 


pp. 

86, 1S5 


25,  S2 


1        2        1 


44,256 


22,58 


22,58 


2  23,  66 

5  23,  72 

5  21,  VS 

1  25,84 


INDEX.  341 

Art    sec.    cl.         pp. 
HOUSE.    Each,  may  determine  the  rules  of  its  proceedings,  pnnish 

its  members  for  disorderly  behavior,  and,  with  the  con 
currence  of  two-thirds,  expel  a  member 152  25,  S6 

The  rules,  where  found,  n.  47.     The  right  to  punish  for 

contempts,  n.  48.     For  what  a  member  may  be  expelled  ; 

and  who  have  been  expelled,  notes  49,  50. 
HOUSE.     Each,  shall  keep  a  journal  of  its  proceedings,  and  from 

time  to  time  publish  the  same,  excepting  such  parts  as 

may,  in  their  judgment,  require  secrecy  ;  and  the  yeas  and 

nays  of  the  members  of  either  house,  on  any  question, 

shall,  at  the  desire  of  one-fifth  of  those  present,  be  entered 

on  the  journal 1        5        8         26,  87 

The  object  of  this,  n.  51. 
HOUSE.     Neither,  during  the  session  of  Congress,  shall  without  the 

consent  of  the  other,  adjourn  for  more  than  three  days, 

nor  to  any  other  place  than  that  in  which  the  two  houses 

shall  be  sitting 154         26,88 

This  was  to  secure  independence  of  the  President,  n.  52. 
HOUSE  of  Representatives.     All  bills  for  raising  revenue   shall 

originate  in  the  House  of  representatives,  but  the  Senate 

may  propose,  or  concur  with,  amendments,  as  on  other 

bills 171         27,90 

Copied  from  the  English  law,  n.  64.     Revenue  defined, 

n.  65. 
HOUSE   of  Representatives  and  Senate.     Every  bill  which  shall 

have  passed  the  House  of  Representatives  and  the  Senate 

shall,  before  it  become  a  law,  be  presented  to  the  President 

of  the  United  States ;  if  he  approve,  he  shall  sign  it,  but  if 

not.  he  shall  return  it,  with  his  objections,  to  that  house 

in  which  it  shall  have  originated,  who  shall  enter  the  ob 
jections  at  large  on  their  journal,  and  proceed  to  reconsider 

it.     If,  after  such  reconsideration,  two-thirds  of  that  house 

shall  agree  to  pass  the  bill,  it  shall  be  sent,  together  with 

the  objections,  to  the  other  house,  by  which  it  shall  like 
wise  be  reconsidered,  and  if  approved  by  two-thirds  of  that 

house,  it  shall  become  a  law.     But  in  all  such  cases  the 

votes  of  both  houses  shall  be  determined  by  yeas  and  nays ; 

and  the  names  of  the  persons  voting  for  and  against  the  ' 

bill  shall  be  entered  on  the  journal  of  each  house  respect 
ively.  If  any  bill  shall  not  be  returned  by  the  President 

within  ten  days  (Sundays  excepted)   after  it  shall  have 

been  presented  to  him,  the  same  shall  be  a  law,  in  like 

manner  as  if  he  had  signed  it,  unless  the  Congress,  by  their 

adjournment,  prevent  its  return,  in  which  case  it  shall  not 

be  u  law...    ... 172          27,91 

When  bills  take  effect,  n.  66.    The  returning,  negative 

or  veto  defined,  n.  67.     History  of  the  veto,  n.  67,  pp.  92, 93. 
HOUSE  of  Representatives  and  Senate.     Every  order,  resolution,  or 

vote  to  which  the  concurrence  of  the  Senate  and  House  of 

Representatives  may  be  necessary  (except  on  a  question 

of  adjournment),  shall  be  presented  to  the  President  of  the 

United  States,  and,  before  the  same  shall  take  eft'ect,  shall 

be  approved  by  him;  or,  being  disapproved  by  him,  shall 

be  repassed  bytwo-thirds  of  the  Senate  and  House  of  Rep 
resentatives,  according  to  the  rules  and  limitations  pre 
scribed  in  the  case  of  a  bill 173  28,03 

When  a  joint  resolution  is  a  law,  n.  70.     Resolutions 

proposing  amendments  to  the  Constitution  need  not  be 

submitted  to  the  President,  notes  236,  275,  2S4. 
HOUSE  of  Representatives.     If  no  person  have  a  majority  (of  the 

electoral  votes  as  President  of  the  United  States),  then, 

from  the  persons  having  the  highest  numbers,  not  exceed 
ing  three,  on  the  list  of  those  voted  for  as  President,  the 

House  of  Representatives  shall  choose,  immediately,  by 

ballot,  the  President.    But,  in  choosing  the  President  the 

votes  shall  be  taken  by  States,  the  representatives  from 

each  State  having  one  vote :  a  quorum  for  this  purpose 

shall  consist  of  a  member  or  members  from  two-thirds  of 


342 


INDEX. 


Art.  sec.    cl. 

the  States,  and  a  majority  of  all  the  States  shall  be  neces 
sary  to  a  choice.    And  if  the  House  of  Representatives 
shall  not  choose  a  President,  whenever  the  right  of  choice 
shall  devolve  upon  them,  before  the  4th  day  of  March  next 
following,  then  the  Vice-President  shall  act  as  President, 
as  in  the  case  of  the  death  or  other  constitutional  disability 
of  the  President.    Amendments  .........................     12        1 

The  old  Constitution,  n.  163.  The  contingency  of  four 
candidates  and  a  tie  vote  met,  n.  168,  p.  166. 

HOUSES.     The  right  of  the  people  to  be  secure  in  their  houses 
against  unreasonable  searches  and  seizures,  shall  not  be 
violated.     Amendments  ................................      4 

The  people  defined,  n.  251.  Searches  and  seizures,  when 
unreasonable,  n.  251.  "Warrants  defined,  n.  252.  i«S*««1 

HOUSES  of  Congress.     The  Congress,  whenever  two-thirds  of  both 
houses  shall  deem  it  necessary,  shall  propose  amendments 
to  this  Constitution  .  .  ...................................       5 

What  is  the  Congress,  n.  275.  All  the  amendments  have 
been  proposed  to  the  legislatures,  n.  2:36.  The  history  of 
the  first  twelve,  n.  244.  "Of  the  thirteenth,  n.  274.  Of  "the 
fourteenth,  notes  275-285. 

HOUSES  of  Congress.    The  President  may,  on  extraordinary  occa 

sions,  convene  b'»th  houses  of  Congress,  or  either  of  them.       2        3 
The  exercise  of  this  power,  n.  188. 

HUNTINGTON,  SAMUEL,  of  Connecticut  Signed  Dec.  of  Ind.  p.  7. 
Signed  Articles  of  Confederation,  p.  21. 

HUTSON,  RICHARD,  of  S.  C.    Signed  Articles  of  Confederation,  p.  21. 

HYDROMETERS  to  be  procured,  n.  102,  p.  117. 

ILLINOIS.  Qualifications  for  suffrage  in,  n.  17,  p.  60.  Fourteen 
representatives  in  1860,  n.  24.  Population  during  the  dif 
ferent  decades,  n.  24,  pp.  69.  70.  Assigned  to  the  seventh 
judicial  circuit,  n.  197.  p.  192.  Admitted  into  the  Union, 
n.  230.  Ratified  the  13th  amendment,  n.  274:  and  the  14th, 
n.  275. 

IMMIGRANTS  from  Europe,  with  six  years'  residence,  allowed  to 
vote  in  South  Carolina,  n.  17,  p.  64.  And  in  Wisconsin,  Id. 

IMMIGRATION.     The  proper  term  in,  Art.  I.  Sec.   9,  cl.  1,  n.  139. 

IMMUNITIES.    The  citizens  of  each  State  shall  be  entitled  to  all 

privileges  and  immunities  of  citizens  in  the  several  States.      4        '2        1 

Citizens  defined,  and  their  classification.  (See  Citizens, 
notes  220,  274.)  Privileges  and  immunities  defined,  n.  221. 
Immunities  are  rights  of  exemption  onlv,  n.  221. 

IMPEACHMENT.     The  House  of  Representatives  shall  have  the  solo 

power  of  impeachment  ..............................  ____       125 

We  look  to  the  common  law  for  the  definition  of  im 
peachment,  n.  27.  Defined,  notes  27,  191.  Discussed  as 
to  what  are  high  crimes  and  misdemeanors,  n.  194.  How 
tried,  and  trials  where  found,  n.  39.  Oath  of  senators  on 
trial,  n.  39,  p.  82.  Questions  to  senators,  Id.  Judgment 
in  cases  of,  n.  40.  History  of,  n.  194 

IMPEACHMENT.    The  Senate  of   the  United  States  shall  have  the 

sole  power  to  try  all  impeachments  .....   ...............       136 

For  the  doctrine  and  precedents,  n.  39. 

IMPEACHMENT.     When  sitting  to  try  an  impeachment,  the  Senate 

shall  be  on  oath  or  atlirmation  ..............  .............       136 

The  oath  of  the  senators,  and  the  question  propounded 
to  them,  n.  39. 

IMPEACHMENT.     When  the  President  is  tried,  the  Chief-Justice 

shall  preside  ...........................................       186 

History  and  failure  of  the  effort  to  impeach  President 
Johnson  n.  194.  Charges  against,  and  law  arguments,  n.  194. 

IMPEACHMENT.     No   person   shall  be  convicted   without  the  con 

currence  of  two-thirds  of  the  members  present  ..........      1        3        6 

iMi'iiACHMKNT.  Judgment  in  cases  of  impeachment  shall  not 
extend  further  than  removal  from  office,  and  disqualifica 
tion  to  hold  and  enjoy  any  office  of  honor,  trust,  or  profit, 
under  the  United  States  .................................  137 


pp. 


46,165 


44,257 


44,  25S 


86,  183 


38,  222 
24,72 

25,81 
25,81 

25,81 
25,  SI 

25,82 


INDEX.  343 


Art.    sec,    cl.  pp. 

Judgment  defined,  n.  40.  "Whether  it  can  be  less  than 
removal  and  disqualification,  n.  40.  It  can  be  no  more,  Id. 

IMPEACHMENT.  But  the  party  convicted  shall,  nevertheless,  be 
liable  and  subject  to  indictment,  trial,  judgment,  and  pun 
ishment,  according  to  law 1  3  7  25,82 

IMPEACHMENT.  The  President  shall  have  power  to  grant  reprieves 
and  pardons  for  offenses  against  the  United  States,  except 

in  cases  of  impeachment 221        3.5,170 

The  power  to  pardon  is  unlimited,  with  this  exception, 
n.  176,  p.  173. 

IMPEACHMENT.  All  civil  officers  of  the  United  States  shall  ba 
removed  from  office  on  impeachment  for,  and  conviction 
of,  treason,  bribery,  or  other  high  crimes  and  misde 
meanors. 241  36,185 

None  but  civil  officers,  n.  191.  Impeachment  denned, 
notes  27,  191.  For  treason  and  bribery,  n.  192.  High 
crimes  defined,  n.  193.  Misdemeanors  defined  and  distin- 
guisned  from  felony,  n.  194.  No  case  yet  tried  rests  upon 
statutable  misdemeanors,  n.  194,  p.  187.  Charges  against 
President  Johnson.  Argument  of  the  minority  that  they 
are  not  crimes  or  misdemeanors,  n.  194.  p.  188.  Chase's 
trial,  notes  27,  194.  Klounfs  trial,  n.  194.  The  charges, 
Id.  Peck  and  Humphries,  n.  1S>4,  p.  188.  "Good  beha 
vior"  cannot  apj.Iy  to  the  President 

IMPEACHMENT.  The  trial  of  all  crimes,  except  in  cases  of  impeach 
ment,  shall  be  by  jnrv 323  37,209 

Trial  and  crimes  defined,  n.  212. 

IMPORTATION.     No  amendment  made  prior  to  1808  shall  affect  the 

1st  and  4th  clauses  of  the  9th  section 5  40,246 

IMPORTATION'  of  persons.  (Slaves.)  The  migration  or  importation  of 
such  persons  as  any  of  the  States  now  existing  shall  think 
proper  to  admit,  shall  not  be  prohibited  by  Congress  prior 
to  the  year  eighteen  hundred  and  eight,  but  a  tax  or  duty 
may  be  imposed  on  such  importation  not  exceeding  ten 

dollars  for  each  person I        9        1        80,140 

Migration  or  importation  defined  and  discussed.  Migra 
tion  is  voluntary;  importation  involuntary,  n.  139.  Im 
migration  the  proper  word,  Id. 

IMPOSTS.     Congress  shall  have  power  to  lay  imposts 181          28,94 

Imposts  defined,  notes  76,  144. 

IMPOSTS.      All   duties,   imposts,   and    excises,   shall  be    uniform 

throughout  the  United  States 181        23,194 

Taxes  must  be  by  the  rules  of  uniformity  or  apportion 
ment,  notes  22,  81,  144,  145.  It  here  means  that  the  same 
duties  shall  be  paid  at  all  the  ports. 

IMPOSTS.     No  State  shall,  without  the  consent  of  Congress,  lay  any 

imposts  or  duties  on  imports  or  exports,  &c.     (See  Duties.)      1      10        2        32,161 
Imposts  defined,  n.  162. 

INABILITY.  In  case  of  the  inability  of  the  President  to  discharge 
the  powers  and  duties  of  that  office,  the  same  shall  de 
volve  on  the  Vice-President;  and  in  case  of  the  inability 
of  both  President  and  Vice-President,  Congress  shall  by 

law  declare  what  officer  shall  then  act  as  President 2        1        5       34,169 

The  law  of,  n.  172,  §  8.  The  President  pro  tern,  to  act 
as  President  when ;  Speaker  of  the  House,  n.  172. 

INDEPENDENCE.    Declaration  of,  pp.  1-S. 

INDEPENDENCE.  All  who  adhered  to  the  cause  of,  became  citizens 
of  the  United  States,  n.  220,  §§  1,  6.  And  those  who  ad 
hered  to  the  independence  of  Mexico  how  far,  Id. 

INDEPENDENT.  That  these  United  States  are,  &c.,  p.  6.  Texas 
was  before  annexation,  Pref.  p.  viii.  Its  rights,  as  such,  how 
far  surrendered,  Id. 

INDIANA.  Qualifications  for  suffrage  in,  n.  17,  p.  61.  Eleven 
representatives  in  I860,  n.  24.  Population  during  the  dif 
ferent  decades,  n.  24,  pp.  69-71.  Assigned  to  the  seventh 
judicial  circuit,  n.  197,  p.  192.  Admitted  into  the  Union, 
n.  230.  Ratified  the  13th  amendment,  n.  274:  and  the 
14th,  n.  275. 


344 


INDEX. 


INDIAN  tribes.    Congress  shall  have  power  to  regulate  commerce 

among  the  several  States,  and  with  t'ie  Indian  tribes. ...       1 

The  power  is  absolute,  without  reference  to  the  locality 
of  the  tribe,  n.  91.  As  long  as  their  tribal  relations  exist, 
n.  91.  It  extends  to  prohibiting  intercourse  with  the 
Indians  and  punishing  crime  irf  their  country,  n.  91.  Their 
ownership  of  land  denned,  n.  91.  A  white  man  adopted 
by  the  Indians  is  not  an  Indian,  n.  91.  The  tribes  are  not 
subject  to  the  internal  revenue  tax,  n.  91,  pp.  110,  111.  Nor 
to  the  State  laws  of  taxation,  n.  91,  p.  Ill,  §  1.  Commerce 
with  the  Indians  is  regulated  by  treaties  and  intercourse 
laws,  n.  92,  §  2.  Not  embraced  in  acts  of  Congress  unless 
named,  n.  92,  §  8.  Not  foreign  States,  nor  States  of  the 
Union,  n.  208.  Slaves  among  them  might  be  apprehended 
by  the  President,  n.  257. 

INDIANS.  Were  citizens  of  Mexico,  and  thus  became  citizens  of 
the  United  States,  n.  220.  §  6.  Portions  of  them  declared 
citizens  of  the  United  States  by  treaty,  n.  220,  §  11. 

INDIANS  not  taxed,  excluded  from  representative  numbers 1 

Sume  provision  in  the  14th  amendment,  pp.  50,  279,  §  2. 

INDICTMENT.  No  person  shall  be  held  to  answer  for  a  capital  or 
otherwise  infamous  crime,  unless  on  a  presentment  or  in 
dictment  of  a  grand  jury,  »fcc.  Amendments 5 

Presentment  and  indictment  defined,  n.  253.  Grand 
jury  defined ;  regulated  by  act  of  Congress,  Id.  Accusa 
tion  means  a  copy  of  the  presentment  or  indictment,  n. 
260.  This  amendment  secures  a  presentment  or  indict 
ment  before  there  can  be  a  jury  trial,  n.  218. 

INDICTMKNT.  Persons  convicted  on  an  impeachment,  shall  never 
theless  be  subject  to  indictment,  trial,  judgment,  and 

punishment,  according  to  law 1 

(See  Impeachment.) 

INFERIOR  courts.     Congress  shall  have  power  to  create  tribunals 

inferior  to  the  Supreme  Court 1 

To  constitute  and  tribunals  defined,  n.  109.  This  affords 
no  pretext  for  abrogating  any  established  law  of  property, 
n.  109.  Or  overruling  State  decisions  as  to,  Id. 

INFERIOR  courts.  The  judicial  power  of.  the  United  States  shall  be 
vested  in  one  Supreme  Court,  and  in  such  inferior  courts 
as  Congress  may  from  time  to  time  ordain  and  establish. 
The  judges,  both  of  the  Supreme  and  inferior  courts,  shall 

hold  their  offices  during  good  behavior  8 

Congress  may  also  define  the  jurisdiction  of  inferior 
courts;  Territorial  courts  are  inferior,  n.  196.  The  tenure 
is  for  life  or  until  impeachment,  n.  197. 

INFERIOR  officers.    (See  Appointment,  notes  179-184) 2 

INGKRSOLL,  JAUED,  of  Penn.     Signed  this  Constitution,  pp.  42,  252. 

INHABITANT.     A  representative  in  Congress  shall  be  an  inhabitant 

of  the  State  in  which  he  shall  be  chosen 1 

Inhabitant  defined,  n.  20.  Of  the  District  of  Columbia 
does,  a  foreign  minister  does  not,  lose  his  character  of,  n.  20. 

INHABITANT.    A  senator  in  Congress  shall  be  an  inhabitant  of  the 

State  in  which  he  shall  be  chosen 1 

INHABITANT.  The  electors  shall  meet  in  their  respective  States, 
and  vote  by  ballot  for  President  and  Vice-President,  one 
of  whom,  at  least,  shall  not  be  an  inhabitant  of  the  same 
Btate  with  themselves.  Amendments 

1  .HABITANTS.  Treated  as  citizens  under  the  Articles  of  Confeder 
ation,  Art.  IV.  p.  10.  Of  Louisiana,  Florida.  Texas,  Cali 
fornia,  and  Arizona  became  citizens,  n.  220,  §  8,  4,  5. 
Corporations  are,  for  the  purpose  of  suits,  n.  206.  The  rela 
tions  of  the,  of  the  loyal  States  during  the  rebellion,  notes 
117.  215. 

INSPECTION  laws.  No  State  shall,  without  the  consent  of  Congress, 
lay  any  imposts  or  duties  on  imports  or  exports,  except 
what  may  be  absolutely  necessary  for  executing  its  inspec 
tion  laws 

Inspection  defined,  n.  164.    Absolutely  necessary  de- 


Art,    sec.    cl. 


pp. 
28, 105 


12 


2        3 


28,67 
44 


25,  82 
29, 124 


86, 1S9 

85,174 
23,  66 

2', 77 
46,164 


1      10        2        82,161 


INDEX.  345 

Art.  sec.    cl.  pp 

fined,  n.  62.    They  are  component  parts  of  the  power  of  a 
State,  n.  89,  p.  108. 

INSTRUMENT.  The  Constitution  must  be  construed  like  any  other, 
n.  170. 

INSTRUMENTS.  The  right  to  regulate  commerce  carries  along  the 
right  to  regulate  the  instruments  of  intercourse  and  trade, 
notes  85,  '274. 

INSTRUMENTS.  Secretary  of  the  Treasury  to  procure  for  weighing 
and  gauging,  n.  102,  p.  118. 

INSURGENT  States.  ^During  the  rebellion  did  not  become  foreign, 
and  their  inhabitants  alien  enemies,  n.  213.  (See  Rebel 
States.) 

INSURRECTION.  The  United  States  shall,  on.  application  of  the 
legislature,  or  of  the  executive  (when  the  legislature  can 
not  be  convened),  protect  each  State  against  domestic 

violence  or  insurrection 4        4  89, 242 

Acts  of  the  Congress  upon  the  subject,  n.  235.  The 
President  must  decide  upon  the  facts  of  the  case,  Id.  p.  246. 

INSURRECTIONS.  Congress  shall  have  power  to  provide  for  calling 
forth  the  militia  to  execute  the  laws  of  the  Union,  suppress 

insurrections,  and  repel  invasions 1         8      15        29,183 

Insurrections  defined  and  discussed,  n.  132.  Invasions 
denned,  n.  133. 

INTERIOU  waters.  The  admiralty  jurisdiction  over  defined,  n. 
203. 

INTERCOURSE  cannot  be  restricted  by  the  States,  n.  87,  p.  106. 

INVADED.  No  State  shall,  without  the  consentof  Congress,  engage 
in  war  unless  actually  invaded,  or  in  such  imminent  danger 

as  will  not  admit  of  delay 1      10        3        32,161 

The  States  may  repel  invasions  upon  emergencies,  n.  164. 

INVASION.  The  privilege  of  the  writ  of  habeas  corpus  shall  not 
be  suspended,  unless  when,  in  cases  of  rebellion  or  inva 
sion,  the  public  safety  may  require  it 192  30,140 

(See  Habeas  Corpus,  note  141.)  The  President  sus 
pended  the  writ,  Id.  n.  141,  p.  143. 

INVASION.     The  United  States  shall  protect  each  State  against 

invasion   4        4  39,242 

Invasion  denned,  notes  133,  234.  Extends  to  domestic 
as  well  as  foreign  hostility,  n.  234.  A  political  question, 
n.  234.  History  of,  during  the  rebellion,  Id. 

INVASIONS.  Congress  shall  have  power  to  provide  for  calling 
forth  the  militia  to  execute  the  laws  of  the  Union,  sup 
press  insurrections,  and  repel  invasions 1  8  15  29,133 

This  is  coupled  with  the  guaranty  to  protect  against, 
n.  133.  It  may  be  by  State  authority,  n.  133. 

INVENTORS  may  secure  exclusive  rights  to  their  discoveries  for  a 

limited  time 1        8        8        29,121 

Inventors  defined,  n.  108. 

IOWA.  Qualifications  for  suffrage  in,  n.  17,  p.  61.  Six  representa 
tives  in  1800,  n.  24.  Population  during  the  different 
decades,  n.  24,  pp.  69,  70.  Assigned  to  the  eighth  judicial 
circuit,  n.  197,  p.  192.  Admitted  into  the  Union,  n.  230. 
Ratified  the  13th  amendment;  n.  274,  and  the  14th,  n.  275. 

IREDELL,  JAMKS.     Associate  Justice  of  the  Supreme  Court,  n.  197 

IZARo,  RALPH.     President  of  the  Senate,  n.  S3,  p.  78. 

JAY,  JOHN.     Chief- Justice,  n.  197,  p.  192. 

JACKSON,  ANDRKW.  Views  upon  nullification,  Pref.  p.  v.  n.  144. 
President  of  the  United  States,  n.  166.  Vetoes,  n.  67. 

JACKSON,  WILLIAM.     Attested  the  Constitution,  pp.  42,  252 

JEFFERSON,  THOMAS,  of  Virginia.    Signed  Dec.  of  Jnd.  p.  7;  Presl-     -  ,  ...  •} 
dent,  n.  166. 

JENIFER,  DAN  :  OF  ST.  THOMAS,  of  Maryland.  Signed  the  Constitu 
tion,  pp.  42,  252 

JEOPARDY.    Nor  shall  any  person  be  subject,  for  the  same  offense, 

to  be  twice  put  in  jeopardy  of  lile  or  limb.     Amendments.      5  44,  25b 

Jeopardy  defined  and  discussed,  n.  255. 

JOHNSON,    ANDREW.      Vice-President,    n.  37,  p,  77.      President, 

15* 


346 


ITOEX. 

Art.  sec.    cl.  pp. 


n.  166.  His  differences  with  Congress,  n.  46,  p.  85.  His 
notable  vetoes,  n.  67,  pp.  92,  93.  The  grounds  and  failure 
of  his  impeachment,  n.  194.  His  views  as  to  the  supre 
macy  of  law,  n.  239.  His  views  as  to  resolutions  propos 
ing  constitutional  amendments,  n.  236.  His  views  upon 
the  14th  constitutional  amendment,  n.  275.  His  condi 
tions  imposed  upon  the  rebel  States,  n.  276.  His  recom 
mendation  to  Congress  to  retrace  its  steps,  n.  231. 
Disbanded  the  militia  of  the  District  of  Columbia, 
n.  249. 

JOHNSON,  RICHARD  M.    Vice-President,  n.  37,  p.  77. 

JOHNSON,  THOMAS.    Associate  Justice,  n.  197,  p.  193. 

JOHNSON,  WILLIAM.    Associate  Justice,  n.  197,  p.  193. 

JOHNSON,  WILLIAM  SAMUEL,  of  Connecticut.  Signed  the  Consti 
tution,  pp.  42,  252. 

JOURNAL.  Each  house  of  Congress  shall  keep  a  journal  of  its 
proceedings,  and  from  time  to  time  publish  the  same, 
excepting  sueh  parts  as  may,  in  their  judgment,  require 
secrecy;  and  the  yeas  and  nays  of  the  members  of  either 
house,  on  any  question,  shall,  at  the  desire  of  one-fifth  of 
those  present,  be  entered  on  the  journal 1  5  S  26,187 

JOURNAL.  When  the  President  shall  return  a  bill,  with  his  objec 
tions,  to  the  house  in  which  it  originated,  those  objections 
shall  be  entered  at  large  on  their  journal,  and  the  votes, 
by  yeas  and  nays,  on  the  reconsideration  of  such  bill,  shall 
be  entered  on  the  journal  of  each  house  respectively. 
(SeeJfiW.) 172  27,91 

JUDGES  of  the  Supreme  Court.  The  President  shall  nominate, 
and.  by  and  with  the  advice  and  consent  of  the  Senate, 
appoint  the  Judges  of  the  Supreme  Court  of  the  United 
States 222  35,174 

JUDGES  of  the  Supreme  and  inferior  courts  shall  hold  their  offices 
during  good  behavior,  and  shall,  at  stated  times,  receive 
for  their  services  a  compensation  which  shall  not  be 

diminished  during  their  continuance  in  office 3        1  86,189 

During  good  behavior  defined,  n.  197.  Those  who  hold 
their  offices  for  a  term  of  years  are  not  constitutional 
judges,  n.  197.  The  court  in  1S6S.  n.  197.  Since  the 
foundation  of  the  government,  n.  197,  p.  193.  The  com 
pensation,  n.  198. 

JUDGES.  The  judges  in  every  State  shall  be  bound  by  the  Consti 
tution,  laws,  and  treaties — any  thing  in  the  Constitution  or 

laws  of  any  State  to  the.  contrary  notwithstanding 6  2        40,  247 

The  courts  will  declare  State  Constitutions  and  laws 
which  violate  the  paramount  law,  void,  n.  241. 

JUDGMENT,  in  cases  of  impeachment,  shall  not  extend  further  than 
to  removal  from  office,  and  disqualification  to  hold  and 
enjoy  any  office  of  honor,  trust,  or  profit  under  the  United 
States;  but  the  party  convicted  shall,  nevertheless,  be 
liable  and  subject  to  indictment,  trial,  judgment,  and  pun 
ishment,  according  to  law 1  3  7  25.82 

Judgment  defined,  n.  40.  Can  neither  go  beyond  nor 
fall  short,  Id.  Touches  neither  person  nor  property,  Id. 

JUDGMENTS.  (See  A cts — Authentication — Credit — Faith— Judi 
cial  Proceeding*.}  Where  the  jurisdiction  has  attached, 
the  judgment  is  conclusive,  n.  218,  p.  214.  If  there  has 
been  service  or  defense,  nothing  is  open  (not  even  fraud 
between  the  parties  and  privies)  save  the  question  of 
jurisdiction,  Id.  But  they  are  subject  to  limitation, 
n.  21S,  p.  215.  They  an-  conclusive  evidence,  Id.  They  are 
not  foreign,  but  domestic,  n.  218,  pp.  215,  219.  They  can 
be  controverted  for  want  of  service.  Id.  p.  217.  The 
courts  will  notice  the  local  laws  under  which  they  wero 
rendered,  n.  219.  The  rule  only  applies  to  judgments  of 
courts  of  record,  Id.  Not  to  judgments  of  the  courts  of 
the  United  States,  n.  219.  p.  219.  How  they  must  be  cer 
tified,  Id.  Ml  debet  is  not  a  good  plea,  n.  219,  p.  220. 


INDEX.  347 

Art.  sec.    cl.  pp. 

The  judgment  determines  all  which  might  have  been  liti 
gated  in  the  cause,  Id. 

JUDICIAL  power.  The  judicial  power  of  the  United  States  shall 
be  vested  in  one  Supreme  Court,  and  in  such  inferior 
courts  as  the  Congress  may  from  time  to  time  ordain  and 
establish.  The  judges,  both  of  the  Supreme  and  interior 
courts,  shall  hold  their  offices  during  good  behavior,  and 
shall,  at  stated  times,  receive  for  their  services  a  compen 
sation  which  shall  not  be  diminished  during  their  con 
tinuance  in  office  3  1  86,189 

Judicial  power  defined,  n.  195.     Its  objects,  Id. 

(See  Courts — Inferior  Courts — Judge*?  Compensation.) 

JUDICIAL  power.  The  judicial  power  shall  extend  to  all  cases  in 
law  and  equity  arising  under  this  Constitution,  the  laws  of 
the  United  States,  and  the  treaties  made,  or  which  snail  be 
made,  under  their  authority ;  to  all  cases  affecting  ambas 
sadors,  other  public  ministers,  and  consuls ;  to  all  cases  of 
admiralty  and  maritime  jurisdiction;  to  controversies  to 
which  the  United  States  shall  be  a  party;  to  contro 
versies  between  two  or  ?nore  States;  between  a  State  and 
the  citizens  of  another  State;  between  citizens  of  different 
States;  between  citizens  of  the  same  State,  claiming  lands 
under  grants  of  different  States;  and  between  a  State,  or 
the  citizens  thereof,  and  foreign  States,  citizens,  or  subjects.  3  2  1  87,194 

Judicial,  as  contradistinguished  from  legislative  and 
executive  power,  n.  199.  Does  not  extend  to  alF  questions, 
Id.  As  to  various  political  treaties,  Id.  Case  defined  and 
treated,  notes  199,  2uO,  201.  (See  Ambassadors,  n.  202. 
Admiralty,  n.  203.)  Controversies  to  which  the  United 
States  shall  be  a  party  explained,  n.  204.  The  power  over 
suits'  between  States,  n.  205.  Between  a  State  and  citizens 
of  another  State,  n.  205«.  Between  citizens  of  different 
States.  (See  Citizens,  n.  20(i.)  Between  citizens  of  the 
same  State  claiming  land,  &c.  explained,  n.  207.  Between 
States  or  the  citizens  and  foreign  States,  &c.,  208,  209. 
(See  Aliens,  n.  209.) 

JUDICIAL  power.  In  all  cases  affecting  ambassadors,  other 
public  ministers,  and  consuls,  and  those  in  which  a  State 
shall  be  a  party,  the  Supreme  Court  shall  have  ori 
ginal  jurisdiction.  In  all  the  other  cases  before  men 
tioned,  the  Supreme  Court  shall  have  appellate  jurisdic 
tion,  both  as  to  law  and  fact,  with  such  exceptions,  and 

under  such  regulations,  as  the  Congress  shall  make 8        2        2        87,20* 

Original  jurisdiction  defined  and  discussed,  n.  210. 
Jurisdiction  defined,  n.  210.  When  the  suit  and  when 
the  parties  give  jurisdiction  in,  Id.  Appellate  juris 
diction  defined,  n.  211.  What  question  must  have 
been  made  to  give  appellate  jurisdiction,  n.  211,  p.  207. 
Congress  cannot  confer  the  power  to  grant  a  new 
trial,  Id.  Where  a  State  is  a  party  defined. 

JUDICIAL  power.  The  trial  of  all  crimes,  except  in  cases  of  im 
peachment,  shall  be  by  jury,  and  such  trial  shall  be  held  in 
the  State  where  the  said  crimes  shall  have  been  committed  ; 
but  when  not  committed  within  any  State,  the  trial  shall  be 
at  such  place  or  places  as  the  Congress  may  by  law  have 

directed 823        87,209 

(See  Trial,  n.  212.)  (Impeachment,  notes  39,  191-194.) 
Jury,  n.  212.  The  jury  not  the  judges  of  the  law,  Id.  Why 
in  the  State,  n.  213.  Where  offenses  committed  out  of  the 
State  are  tried,  n.  214 

JUDICIAL  proceedings.  Full  faith,  credit,  proof,  and  effect  to  be 
given  in  each  State  to  the  acis,  records,  and  judicial  pro 
ceedings  of  every  other  State 4  1  88,218 

(See  Judgment*,  notes  218,219.)  Judicial  proceedings 
defined,  n.  218.  How  proved,  n.  219,  p.  218,  §  1.  Of  every 
State  defined,  n.  218,  p.  219.  How  authenticated,  Id. 
When  so  proved  have  full  faith,  Id.  220. 

JUDICIAL  officers,  both  of  the  United  States  and  the  several  States, 


348 


INDEX. 


shall  be  bound  by  oath  or  affirmation  to  support  this  Con 
stitution 6 

The  reason  why,  n.  242.     The  oath  ;  the  test  oath,  Id. 

JUDICIAL  power.  The  judicial  power  of  the  United  States  shall 
not  be  construed  to  extend  to  any  suit,  in  law  or  equity, 
commenced  or  prosecuted  against  one  of  the  United  States, 
by  citizens  of  another  State,  or  by  citizens  or  subjects  of 

any  foreign  State.     Amendments 11 

This  is  an  amendment  of  the  third  section,  notes  205rt, 
270.  It  waa  to  prevent  individual  suits  against  States, 
n.  170.  It  included  suits  then  pending,  Id.  Doesnotextend 
to  admiralty,  n.  272.  The  State  is  not  a  party  unless  it  so 
appear  on  the  record,  n.  272. 

JURISDICTION.    The  judicial  power  shall  extend  to  all  cases  of 

admiralty  and  maritime  jurisdiction 8 

(See  Admiralty,  n.  203.     See  Judicial  Power.) 

JURISDICTION.       Original     and     appellate ;     in    the     Supreme 

Court 8 

Original  jurisdiction,  defined  and  discussed,  n.  210. 
State  courts  have  none  over  a  consul,  n.  210,  p.  205. 
Appellate,  when  exercised,  and  the  rules  in.  n.  211. 

JURISDICTION.  A  person  charged  in  any  State  with  treason,  felony, 
or  other  crime,  and  fleeing  from  justice,  to  be  delivered 
up  and  removed  to  the  State  having  jurisdiction  of  the 
crime 4  2  2 

JURISDICTION.  No  new  State  shall  be  erected  within  the  jurisdic 
tion  of  any  other  State ., 4  3  1 

How  West  Virginia  was  erected,  n.  285. 

JURY.    The  trial  of  all  crimes,  except  in  cases  of  impeachment, 

shall  be  by  jury 8        2        8 

Jury  defined;  what  must  concur  to  make;  not  judges 
of  the  law  in  criminal  cases;  must  be  a  presentment  or 
indictment  before  there  can  be  a  trial,  n.  212. 

JURY.  No  person  shall  be  held  to  answer  for  a  capital  or  other 
wise  infamous  crime,  unless  on  a  presentment  or  indict 
ment  of  a  grand  jury.  Ac.  Amendments 5 

(See  Indictment — Presentment.  See  notes  253-257.  and 
207.) 

JURY.  In  all  criminal  prosecutions,  the  accused  shall  enjoy  the 
right  to  a  speedy  and  public  trial,  by  an  impartial  jury  of 
the  State  and  district  wherein  the  crime  shall  have  been 
committed,  which  district  shall  have  been  previously 
ascertained  by  law.  Amendments 6 

JURY.  In  suits  at  common  law,  where  the  value  in  controversy 
shall  exceed  twenty  dollars,  the  right  of  trial  by  a  jury 
shall  be  preserved  ;  and  no  fact  tried  by  a  jury  "shall  be 
otherwise  re-examined  in  any  court  of  the  United  States 
than  according  to  the  rules  of  the  common  law.  Amend 
ments 7 

This  includes  all  suits  except  those  in  equity  or 
admiralty,  n.  263.  Parties  may  waive  jury  trial,  a.  268. 

JUSTICE.     Constitution  ordained  in  order  to  establish.     Preamble. 
Justice,  defined,  and  how  to  be  attained,  n.  8. 

JUSTICE.     The  Chief-Justice  shall  preside  when  the  President  is 

tried  on  an  impeachment. 1        8        6 

JUSTICE.     Fugitives  from  justice  to  be  delivered  up  and  removed 

to  the  State  having  jurisdiction  of  the  crime 422 

(See  Fugitive,  note  223.)  Copied  from  the  Articles 
of  Confederation,  Art.  IV.  p.  10.  (See  Delivered  Up, 
n.  224.) 

KANSAS.  Qualifications  for  suffrage  in.  n.  17.  p.  61.  One  repre 
sentative,  n.24.  Population,  n.  24,  pp.  6i>,  70.  Assigned  to 
the  eighth  judicial  circuit,  n.  197,  p.  192.  Admitted  into 
the  Union,  n.  230.  Katified  the  18th  amendment,  n.  274; 
and  the  14th.  n.  275. 

KENTUCKY.  Qualifications  for  suffrage  in,  n.  17,  p.  61.  Nine  rep 
resentatives,  n.  24.  Population  during  the  different 


pp. 
41,250 


46,  209 

87,  194 
37,  204 


33,  229 
89,284 

87,  209 


44,  25S 

44,263 

45,  266 
22,53 

25,81 

33,229 


ITJDEX.  349 

Art.  sec.    cl.  pp. 

decades,  n.  24,  p.  69,  70.    Assigned  to  the  sixth  judicial 

circuit,  n.  197,  p.  192.     Admitted  into  the  Union,  n.  280. 

Rejected   the   13th  amendment,  n.   274;   and   the    14th, 

n.  275. 
KING,  p-ince,  or  foreign    State.    No  title  of  nobility  shall    be 

grunted  by  the  United  States,  and  no  person  holding  any 

(  ffice  of  profit  or  trust  under  them,  shall,  without  the 

consent  of  the  Congress,  accept  of  any  present,  emolu 
ments,  office,  or  title,  of  any  kind  whatever,  from  any 

king,  prince,  or  foreign  State 198        81,152 

Office  defined,  n.  151.    The  inhibition  does  not  extend 

to  private  citizens,  n.  151. 

KING,  KUFUS,  of  Massachusetts.  Signed  the  Constitution,  pp.  41.252. 
KING,  WILLIAM  K.     V  ice-President,  n.  37.     Presiding  officer  of 

the  Senate,  n.  38,  p.  80. 

LABOR.     No  person  held  to  service  or  labor  in  one  State,  shall  be 

discharged  from  such  service  or  labor  in  another  State 4        2        3        89,  232 

This  means  slaves  or  apprentices,  n.  226.    (See  Fugitive, 

n.  206.) 
LAND.    A  civil  law  conveyance  of,  how  proved,  n.  219,  p.  221.    A 

Territory  is  the  compass  or  tract  of,  &c.  (See  Territory, 

n.  231.)     Land  and  territory  are  equivalents.  Id.     A  grant 

of,  is  a  title  emanating  from  the  sovereignty  of  the  soil, 

n.  207. 
LAND  and  naval  forces.     Congress  shall  have  power  to  make  rules 

for  the  government  and  regulation  of  the  land  and  naval 

forces 1        8      14        29,133 

To  make  defined;  the  rules  where  found,  n.  129. 
LAND  ceded  to  or  purchased  by  the  United  States     Congress  shall 

have  power  to  exercise  exclusive  legislation,  in  all  cases 

whatsoever,  over  all  places  purchased  by  the  consent  of 

the  legislature  of  the  State  in  which  the  same  shall  be,  for 

the  erection  of  forts,  magazines,  arsenals,  dock-yards,  and 

other  needful  buildings 1        8      17        30,136 

(See  Arsenals — District.) 
LAND  forces.    (See  Army — Militia.) 
LANDS.    The  judicial  power  shall  extend  to  controversies  between 

citizens  of  the  same  State,  claiming  lands  under  grants  of 

different  SUtes... 3        2        1        87,194 

If  the  grants  are  from  different  States,  the  federal  court 

has  jurisdiction,  n.  207. 
LANGDON,  JOHN,  of  New  Hampshire.      Signed   the   Constitution, 

pp.  41,  250.     Presiding  officer  of  the  Senate,  n.  38,  p.  78. 
LANGWOKTHY,  EDWAKD,  of  Georgia.     Signed  Articles  of  Confeder 
ation,  p.  21. 

LAURKNS,  HKNKY,  of  S.  C.    Signed  Articles  of  Confederation,  p.  21. 
LAW.     The  actual  enumeration  of  the  people,  or  census,  shall  be 

made  within  three  years  after  the  first  meeting  of  the 

Congress  of  the  United  States,  and  within  every  subse 
quent  term  of  ten  years,  in  such  manner  as  they  "shall  by 

law  direct.. 128          23,67 

LAW.    A  person  convicted  on  an  impeachment  shall,  nevertheless, 

be  liable  to  indictment,  trial,  judgment,  and  punishment, 

accordi  ng  to  law 1        3        7          25, 82 

LAW.    The  times,  places,  and  manner,  of  holding  elections  for 

senators  and   representatives  shall  be  prescribed  in  each 

State  by  the  legislature  thereof;  but  the  Congress  may,  at 

any  time,  by  law,  make  or  alter  such  regulations,  except 

as  to  the  places  of  choosing  senators 1        4        1          25,  S3 

If  the  legislature  fail,  the  governor  may  name  a  reason 
able  time,  notes  80,  41.     The  power,  how  far  exercised  by 

Congress,  n.  41.     Does  not  give  the  power  to  fix  the  quali 
fications,  n.  41.     Denied  since  the  13th  amendment,  n.  274. 
LAW.     The  Congress  shall  assemble  at  least  once  in  every  year. 

and  such  meeting  shall  be  on  the  first  Monday  in  Decem 
ber,  unless  they  shall  by  law  appoint  a  different  day 1        4        2          25,  83 


350 


INDEX. 


Art.  sec.    cl.  pp. 

LAW.  The  senators  and  representatives  shall  receive  n  compen 
sation  for  their  services,  to  be  ascertained  by  law,  and 
paid  out  of  the  treasury  of  the  United  States 1  6  1  26,  88 

LAW.  Every  bill  which  shall  have  passed  the  House  of  Repre 
sentatives  and  the  Senate,  shall,  before  it  become  a  law.  be 
presented  to  the  President  of  the  United  States;  if  he 
approve,  he  shall  aign  it,  but  if  not,  he  shall  return  it  with 
his  objections  to  that  house  in  which  it  shall  have  origi 
nated,  who  shall  enter  the  objections  at  lavge  on  their 
journal,  and  proceed  to  reconsider  it.  If,  after  such  recon 
sideration,  two-thirds  of  that  bouse  shall  agree  to  pass  the 
bill,  it  shall  be  sent,  together  with  the  objections,  to  the 
other  house,  by  which  it  shall  likewise  be  reconsidered, 
and  if  approved  by  two-thirds  of  that  house,  it  shall  be 
come  a  law 1  7  2  2791 

When  laws  take  effect,  n.  96.  Cannot  go  behind  the 
written  law,  n.  96. 

LAW.  If  any  bill  shall  not  be  returned  by  the  President  within 
ten  days  (Sundays  excepted)  after  it  shall  have  been  pre 
sented  to  him,  the  same  shall  be  a  law,  in  like  manner  as 
if  he  had  signed  it,  unless  the  Congress,  by  their  adjourn 
ment,  prevent  its  return;  in  which" case  it  shall  not  be  a 
law 1  7  2  27, 91 

LAW.  Every  order,  resolution,  or  vote,  to  which  the  concurrence  of 
the  Senate  and  House  of  Kepresentatives  may  be  neces 
sary  (except  on  a  question  of  adjournment),  shall  be  pre 
sented  to  the  President  of  the  United  States;  and  before 
the  same  shall  take  effect  shall  be  approved  by  him,  or 
being  disapproved  by  him,  shall  be  repassed  by  two-thirds 
of  the  Senate  and  House  of  Kepresentatives,  according  to 

the  rules  and  limitations  prescribed  in  the  case  of  a  bill  ..       1        7        3          28,93 
When  a  joint  resolution  becomes  law,  n.  70. 

LAW  of  nations.  Congress  shall  have  power  to  define  and  punish 
piracies  and  felonies  committed  on  the  high  seas,  and 

offenses  against  the  law  of  nations 1        8      JO        29,124 

Many  offenses  against,  not  crimes,  n.  115.  Offenses 
against  must  be  punished,  how,  Id.  Defined  and  dis 
cussed,  n.  116. 

LAW.    No    bill    of   attainder   or    ex    pout  facto   law    shall    be 

passed 1        9        8        81,146 

(See  Attainder,  n.  142.)     Ex  post  facto  law  defined  and 
discussed,  notes  143,  156. 
No  money  shall  be  drawn  from  the   treasury,  but  in  conse- 


LAW. 
LAW. 


quen^e  of  appropriations  made  by  law 

N 


tate  shall  pass  any  em  post  facto  law. 
Ex  post  facto  law  defined,  n.  156. 

LAW.     No  State  shall  pass  any  law  impairing  the  obligation  of 

contracts 1 

(See  Contracts,  n.  157.)  What  laws  enter  into  the  con 
tract,  n.  157,  pp.  155,  156.  The  law  must  not  so  change  the 
remedy  as  to  impair  the  contract,  n.  157.  A  law  repealing 
a  bank  charter  does  not  impair.  A  bridge  charter  is  a  con 
tract,  n.  157.  Because  a  law  is  retrospective  merely,  does 
not  impair,  n.  158.  Exemption  iaM-s  do  impair,  n  159. 
Stay  laws  may,  n.  160.  Laws  which  affect  the  remedy 
merely  do  not,  n.  161. 

LAW.  In  case  of  the  removal,  death,  resignation  or  inability, 
of  both  President  and  Vice-President,  Congress  sha'll 
by  law  declare  what  officer  shall  then  act  as  Presi 
dent ., 2 

The  law  of  Congress  for  supplying  vacancies,  n.  172. 

LAW.  The  President  shall  have  power,  by  and  with  the  advice 
and  consent  of  the  Senate,  to  appoint  officers  not  provided 
for  in  the  Constitution,  ;md  whose  offices  shall  be  estab 
lished  by  law ;  but  the  Congress  may,  by  law,  vest  the 
appointment  of  such  inferior  officers  as  they  think  proper 
in  the  President  alone,  in  the  courts  of  law,  or  in  the 
heads  of  departments 2 


10 


31, 151 
81,  152 


SI,  153 


84, 169 


85, 174 


IXDEX. 


351 


This  whole  power  defined  and  discussed,  notes  178-184. 
The  tenure  of  office  bill  regulating,  n.  184,  p.  179. 
LAW  *nd  equity.  The  judicial  power  shall  extend  to  all  cases  in 
law  and  equity  arising  under  this  Constitution,  the  laws 
of  the  United  States,  and  the  treaties  made,  or  which 
shall  be  made,  under  their  authority,  «fcc.  (See  Judicial 
Power.)  .............................................  •{  3 


Art.  sec.    cl. 


(See  Judicial  Power  )    When  cases  arise,  n.  199, 
195.     Cases  in  equity,  n.  200.    (See  Case.) 

LAW  »r»d  fact.     The  Supreme  Court  shall  have  appellate  jurisdic 
tion,  both  as  to  law  and  fact,  with  such  exceptions,  and 
under  such  regulations,  as  the  Congress  shall  make  ....... 

(See  Appellate  —  Jurisdiction—Judicial  Power.) 
The  jurisdiction  must  be  conferred  by  law,  n.  211.  The 
judiciary  laws  on  the  subject.  Id. 

LAW.     When  crimes  shall  not  have  been  committed  within  any 
State,  the  trial  shall  be  at  such  place  or  places  as  the  Con 
gress  may  by  law  have  directed  ........................      3 

The  rule  on  the  subject,  n.  214. 

LAW.     No  person  held  to  service  or  labor  in  one  State,  under  the 
laws  thereof,  escaping  into  another,  shall,  in  consequence 
of  any  law  or  regulation  therein,  be  discharged  from  such 
service  or  labor,  but  shall  be  delivered  up  on  claim  of  the 
party  to  whom  such  service  or  labor  may  be  due  ........      4 

(See  Fugitive*—  Labor  —  Slaves.)  This  secured  the 
right  of  the  slaveholder  against  State  legislation,  n.  227. 

LAV      Tin.-*  Constitution,  and  the  laws  of  the  United  States  which 
shall  be  made  in  pursuance  thereof,  and  all  treaties  made, 
or  which  ahull  be  made,  under  the  authority  of  the  United 
hstates,  shall  be  the  supreme  law  of  the  land;   and   tho 
judges  in  every  State  shall  be  bound  thereby,  any  thing  in 
the  Constitution  or  laws  of  any  State  to  the  contrary  not 
withstanding  ..............................  ............       6 

Law  defined,  n.  239.  It  is  in  its  nature  supreme,  n  23i 
The  laws  of  Congress  are  exclusive,  n.  239.  President 
Johnson's  notion  as  to  unconstitutional,  n.  289.  Supreme 
law  defined,  n.  240. 

Lvw.     Congress  shall  make  no  law  respecting  an  establishment  of 
religion,  or  prohibiting  the  free  exercise  thereof;  or  abridg 
ing  the  freedom  of  speech  or  of  the  press  ;  or  the  right  of 
the  people  peaceably  to  assemble,  and  to  petition  the  gov 
ernment  tor  a  redress  of  grievances.     Amendments  .......       1 

This  article  denned  and  discussed.     (See  Establishment^ 
n.  245.) 

No  soldier  shall,  in   time   of  peace,  be  quartered  in  any 
house  without  the  consent  of  the  owner,  nor  in  time  of 
war,  but  in  a  manner  to  be  prescribed  by  law.    Amend 
ments  ..................................................      8 

(See  ffouse,  n.  250.) 

L  vw.     Nor  shall  any  person  be  deprived  of  life,  liberty,  or  property, 

without  due  process  of  law.     Amendments  ...............       5 

Due  process  of  law  defined,  derived,  and  discussed,  n. 
257.  (See  Due  Process  of  Law.) 

LAW.  In  all  criminal  prosecutions  the  accused  shall  enjoy  tho 
right  to  a  speedy  and  public  trial,  by  an  impartial  jury  of 
the  State  and  district  wherein  the  crime  shall  have  been 
committed;  which  district  shall  have  been  previously 
ascertained  by  law.  Amendments  ......................  6 

LAW.  In  suits  at  common  law,  where  the  value  in  controversy 
shall  exceed  twenty  dollars,  the  risrht  of  trial  by  jury  shall 
be  preserved;  and  no  fact  tried  by  a  jury  shall  be  other 
wise  re-examined  in  any  court  of  the  United  States  than 
according  t<»  the  rules  of  the  common  law.  Amendments.  7 

Common  law  is  here  used  in  contradistinction  to  equity, 
n.  203.  Not  of  any  particular  State,  n.  2<i3.  (See  Common 
Law  —  Jury.) 

LAW  or  equity.  The  judicial  power  of  the  United  States  shall  not 
be  construed  to  extend  to  any  suit,  in  law  or  equity,  coin- 


LAW. 


3        2 


37, 194 

37,  204 
37,  '209 


2  37,  204 

3  87,203 
3        39,232 

2        40,247 

43,254 

4  1,  256 
44,258 

44,263 
45,266 


352 


INDEX. 


Art.    sec.      cl. 


11 


menced  or  prosecuted  against  one  of  the  United  States  by 
citizens  of  another  State,  or  by  citizens  or  subjects  of  any 

foreign  State.     Amendments 

(See  this  article  explained  and  discussed,  notes  263,  264, 
265.) 

LAWRENCE,  JOHN.     Presiding  officer  of  the  Senate,  n.  38,  p.  78 

L  vwa  Congress  shall  have  power  to  establish  an  uniform  rule  of 
naturalization,  and  uniform  laws  on  the  subject  of  bank 
ruptcies,  throughout  the  United  States 

The  laws  of  naturalization  discussed,  n.  93.  (See  Alle 
giance — Citizen — Bankruptcy.')  Bankrupt  defined,  n. 
94.  Bankruptcy  defined,  n.  95.  When  the  States  hav« 
authority  to  pass  bankrupt  laws,  n.  96. 

LAWS  of  the  Union.  Congress  shall  have  power  to  provide  for 
calling  forth  the  militia  to  execute  the  laws  of  the  Union, 

suppress  insurrections,  and  repel  invasion*! 

Laws  of  the  Union  defined,  n.  131. 

LAWS.  Congress  shall  have  power  to  make  all  laws  which  shall 
be  necessary  and  proper  for  carrying  into  execution  the 
foregoing  powers,  and  all  other  powers  vested  by  this 
Constitution  in  the  government  of  the  United  States,  or  in 

any  department  or  office  thereof 

this  clause  defined  and  discussed,  notes  138,  214.  Con 
gress  has  all  uie  incidental  and  instrumental  powers  neces 
sary,  n.  138,  p.  139. 

LAWS.  No  State  shall,  without  the  consent  of  the  Congress,  lay 
any  imposts  or  duties  on  imports  or  exports,  except  what 
may  be  absolutely  necessary  for  executing  its  inspection 

laws 1       10 

(See  Inspection) 
LAWS.     All  such  State  laws  shall  be  subject  to  the  revision  and 

control  of  the  Congress 1       1 ) 

LAWS.    The  President  shall  take  care  that  the  laws  be  faithfully 

executed 2        3 

LAWS  of  the  United  States.     The  judicial  poxver  shall  extend  to  all 

cases  in  law  and  equity 3        2 

LAY  and  collect  duties.  Congress  shall  have  power  to  lay  and  col- 
duties,  taxes,  imposts,  and  excises 1  8 

(See  Duties —  Taxes — Impost* — Excises'.) 

LEE,  FRANCIS  LIGHTFOOT,  of  Virginia.  Signed  Declaration  of  Inde 
pendence,  p.  8;  and  Articles  of  Confederation,  p.  21. 
LEE,  RICHARD  HENRY,  of  Virginia.  Signed  Declaration  of  Inde 
pendence,  p.  7.  Signed  Articles  of  Confederation,  p.  21. 
LEGISLATION,  exclusive.  Congress  shall  have  power  to  exercise 
exclusive  legislation  in  all  cases  whatsoever,  over  such 
district  (not  exceeding  ten  miles  square)  as  may,  by  cession 
of  particular  States  and  the  acceptance  of  Congress,  be 
come  the  seat  of  government  of  the  United  States,  and  to 
exercise  like  authority  over  all  places  purchased  by  the 
consent  of  the  legislature  of  the  State  in  which  the  sruna 
shall  be,  for  the  erection  of  forts,  magazines,  arsenals, 

dock-yards  and  other  needful  buildings 1 

Character  of  this  legislation  and  jurisdiction,  notes  136, 
137. 

LEGISLATURE  Electors  of  representatives  in  Congress  shall  have 
qualifications  same  as  for  electors  of  most  numerous 

branch  of  the  State  legislature 1 

The  qualifications  for,  in   each  State,  alphabetically  ar 
ranged,  n.  16,  pp.  5i)-64. 
LEGISLATURE  the,  ot  each  State  shall  choose  two  senators  for  six 

years 1 

The  practice  and  now  the  law,  notes  28.  29,  30. 
LEGISLATURE.     If  vacancies  happen  by  resignation  or  otherwise  in 
the  seats  of  senators,  during  the  recess  of  the  legislature 
of  any  State,  tho  excutive  thereof  may  make  temporary 
appointments  to  fill  such  vacancies,  until  the  next  rneet- 
of  the  legislature,  which  shall  then  fill  such  vacancies. ...       1 
Seats  how  vacated,  n.  32. 


pp. 
46, 269 

184        28,112 

1        8      15        29,133 
1        8      18        80,133 


32,161 

32,161 

36,183 

31,194 

28,94 


8      17        80,  130 


22,56 


24,74 


24,  76 


INDEX. 


353 


Art.    sec. 

LEGISLATURE.  The  times,  places,  and  manner  of  holding  elections 
for  senators  and  representatives  shall  bo  prescribed  in 
each  State  by  the  legislature  thereof;  but  the  Congress 
may,  at  any  time,  by  law,  make  or  alter  such  regulations, 

except  as  to  the  places  of  choosing  senators 1        4 

The  law  upon  the  subject,  n.  30. 

LEGISLATURE.  The  United  States  shall,  on  the  application  of  the 
legislature,  or  of  the  executive  (when  the  legislature 
cannot  be  convened,  protect  each  State  against  domestic 

violence 4        4 

Disqualification  for  having  taken  an  oath  as  member 

of.     (See  Offices.)    Amendments 14        2 

How  far  the  disqualification  extended  under  the  recon 
struction  laws,  n.  281. 

LEGISLATURE.  Must  direct  the  mode  of  ascertaining  compensa 
tion  for  private  property,  n.  259. 

LEGISLATURES  of  States.  Congress  shall  exercise  exclusive  legis 
lation  over  all  places  purchased  by  the  consent  of  the 
legislature  of  the  State  in  which  the  same  shall  be,  for 
the  erection  of  forts,  magazines,  arsenals,  dock-yards,  and 

other  needful  buildings  1 

This  is  not  as  a  local  legislature,  but  as  the  legislature 
of  the  Union,  n.  137.  The'exclusive  jurisdiction  can  only 
be  acquired  by  the  consent  of  the  State,  n.  137.  And 
when  given  they  cannot  tax  these  lands,  n.  187. 

LEGISLATURES  of  States  may  direct  the  manner  of  appointing 
electors  of  President  and  Vioe-President  of  the  United 

States 2 

They  are  now  elected  by  the  people,  n.  167. 

LEGISLATURES  of  States.  No  new  State  shall  be  formed  within, 
another  State,  nor  any  State  be  formed  by  the  junction  of 
two  or  more  States,  without  the  consent  of  the  legis 
latures  of  the  States  concerned  and  of  Congress 4 

How  States  may,  and  how  Virginia  did  consent,  n.  235. 

LEGISLATURES.  The  Congress,  whenever  two-thirds  of  both 
houses  shall  deem  it  necessary,  shall  propose  amend- 
7nents  to  this  Constitution,  or,  on  the  application  of  the 
legislatures  of  two-thirds  of  the  several  States,  shall  call 
a  convention  for  proposing  amendments,  which,  in  either 
case,  shall  be  valid  to  all  intents  and  purposes,  as  part  of 
this  Constitution,  when  ratified  by  the  legislatures  of 
three-fourths  of  the  several  States,  or  by  conventions  in 
three -fourths  thereof,  as  one  or  the  other  mode  of  ratifi 
cation  may  be  proposed  by  Congress 5 

The  only  amendments  made  have  been  through  the 
legislatures,  n.  230.  When  they  ratified  the  thirteenth 
and  fourteenth  amendments.  Id. 

LEGISLATURES.  The  members  of  the  several  State  legislatures 
shall  be  bound  by  oath  or  affirmation  to  support  this  Con 
stitution  6 

LEGISLATURES.  When  the  legislatures  of  the  rebel  States  shall 
have  adopted  the  fourteenth  constitutional  amendment, 
n.  276,  p.  283,  §  5 

LETTERS  of  marque  and  reprisal.    Congress  shall  have  power  to 

grant  letters  of  marque  and  reprisal 1 

This  power  defined,  11.  119.  Marque  defined,  n.  120. 
Reprisal  defined,  n.  121.  This  power  under  the  Confedera 
tion,  Art.  IX.,  p.  14. 

LEWIS,  FRANCIS,  of  New  York.  Signed  Dec.  of  Ind.  p.  7.  Signed 
Articles  of  Confederation,  p721. 

LIBERTY.    The  Constitution  established  to  secure  the  blessings  of 

liberty,  &c.     Preamble 

Liberty  defined,  n.  12.  Habeas  corpus  is  the  writ  for  the 
infraction  of.  n.  141,  p.  144.  The  13th  amendment  further 
secured,  n.  274.  Of  conscience,  n.  245.  Of  speech,  n.  246. 
Of  the  press,  n.  247.  Of  petition,  n.  248.  Secured  by  due 
course  of  law,  n.  257.  Of  the  citizen  not  to  bu  destroyed 


cl. 


pp. 


25,  83 


89,  242 

48,  279 


8      17        80, 136 


82, 162 


40,  246 


8        40, 250 


8      11 


20, 127 


22,53 


354 


INDEX. 


sec.     cl.         pp. 
44,258 


44,258 
44,258 
46,  164 


but  by  the  judgment  of  his  peers,  n.  258.    Civil  liberty 

and  martial  law  cannot  endure  together,  n.  260. 
LIBERTY.     Nor  shall  any  person  be  deprived  of  life,  liberty,  or 

property,  without  due  process  of  law.     Amendments. 

I  >eri  ved  from  Mayna  Charta,,  n.  257.  Due  process  of  law 

defined,  Id. 

LICENSE  by  a  municipal  corporation  is  not  a  regulation  of  com 
merce,  n.  S7,  p  106. 
LIFE.     No  attainder  of  treason  shall  work  corruption  of  blood  or 

forfeiture,  except  during  the  life  of  the  person  attainted..       332       38.213 

(See  Attainder.) 
LIFE  or  limb.     Nor   shall   any  person   be   subject,  for  the  same 

otfense.   to   be   twice   put  in  jeopardy  of  life    or    limb. 

Amendments 5 

LIFE,  liberty,  or  property.    Nor  shall  any  person  be  deprived'  of 

life,   liberty,   or  property,   without  due  process  of   law. 

Amendments 5 

(See  Jeopardy.) 
LISTS  of  electoral  votes  for  President  and  Vice-Presideht  of  the 

United  States  to  be  made.     Amendments 12 

LIVINGSTON,  BROCKHOI.ST.     Associate  Justice,  h.  197,  p.  193. 
LIVINGSTON,  PHILIP,  of  New  York.     Signed  Dec.  of  Ind.  p.  7. 
LOUISIANA.     Qualifications  of  suffrage  in.  n.  17.     Number  of  rep- 

resentaiives,  n.   24.     Population  of,  in  each  decade,  n.  24. 

Admitted  into  the   Union,  n.  230.     Assigned  to  fifth  judi 
cial  circuit,  n.  197.    Its  history  during  the  rebellion,  n  235. 

Ratified  the  13th  amendment,  n.  274;  rejected  the  14th,  n. 

275.      One   of  the    non-reconstructed   States,   n.   277,  §  1. 

Number  of  registered  voters,  n.  278. 

LOVKLL,  JAMES,  of  Mass.    Signed  Articles  of  Confederation,  p.  21. 
LYNCII,  THOMAS,  Jr.,  of  South  Carolina.     Signed  Dec.  of  Ind.  p.  8. 

ADISON,  JAMES.  Jr.,  of  Virginia.  Signed  the  Constitution,  pp. 
42,  252.  President,  n.  166.  Ills  views  on  impeachment 
n.  194.  On  bills  of  credit,  n.  93. 

MAGAZINES.  &c.     Congress  shall  have  power  to  exercise  exclusive 

legislation  over  forts,  magazines,  &c 1        8      17        30136 

(See  Exclusive  Legislation,  n.  137.) 

MAHOMETANISM.  The  first  amendment  not  to  countenance  or  ad 
vance,  n.  245. 

MAINE.  Qualifications  of  voters  in,  n.  17,  p.  6L.  Five  representa 
tives  in  1860,  n.  24,  p.  69.  Population  through  each  decade, 
n.  24.  pp.  6  i,  70.  Assigned  to  the  first  judicial  circuit, 
n.  197,  p.  1S2.  Admitted  into  the  Union,  h.  230.  liatified 
the  13th  amendment,  n.  274;  the  14th,  n.  275. 

MAJOR-GENERALS.     Five  in  the  army,  n.  124.  x 

MAJORITY  of  each  house  of  Congress  shall  constitute  a  quorum  to 

do  business.     Amendments 1 

A  majority  of  those  present,  n.  67. 

MAJORITY  of  the  whole  number  of  electors  necessary  to  elect  the 
President  and  Vice-President  of  the  United  States. 
Amendments 12 

MAJORITY  of  all  the  States  shall  be  necessary  to  a  choice  of  Presi 
dent  when  the  election  shall  devolve  on  the  House  of 
Representatives.  Amendments 12 

MAJORITY  of  the  whole  number  of  senators  shall  be  necessary  to 
a  choice  of  Vice-President,  when  the  election  of  that  olti- 
cer  devolves  upon  the  Senate.  Amendments 12 

MAJORITY  of  voters  to  ratify  the  Constitutions  of  the  Confederate 
States,  n.  276,  p.  283,  §  5.  A  maioritv  of  all  the  registered 
voters  must  vote  for  the  convention,  n.  276,  p.  285,  §3. 
And  a  majority  of  the  registered  votes  cast  at  the  elec 
tion  must  ratify  the  Constitution,  Id.  §  5. 

MARITIME  jurisdiction.     The  judicial  power  shall   extend  to  all 

cases  of  admiralty  and  maritime  jurisdiction 8 

This  jurisdiction  defined,  n.  203.  Maritime  was  used 
to  guard  against  a  narrow  construction  of  the  word  ad 
miralty,  n.  203.  Admiralty  jurisdiction  embraces  all 


5        1          25, 84 

46,164 
46,164 
46,164 

2        1        37,  194 


INDEX.  355 

Art.  sec.    cl.  pp. 

maritime    contracts    wherever   made,    n.    203.      As   for 
material,  &c.,  Id. 

MARQUE.     This  power  under  the  Confederation,  Art.  IX.  p.  14. 

MARQUE  and  reprisal.     Congress  shall  have  power  to  grant  letters 

of  marque  and  reprisal 1        8      11        29, 12T 

These  terms  defined,  notes  119, 120,  121. 

MARQUE  and  reprisal.    No  State  shall  grant  letters  of  marque  and 

reprisal 1      10        1        81,153 

Because   it  is  a  national  power,  n.  152. 

MARRIAGE.  Used  in  connection  with  definition  of  disparage, 
n.  268. 

MARSHAL  of  the  United  States.  E.  C.  Parsons,  the  present,  n. 
197,  p.  192, 

MARTIAL  law.  Cannot  exist  with  civil  liberty,  n.  260.  Defined 
and  distinguished  from  other  military  law,  n.  260,  p.  265. 

MARTIAL  law,  or  military  law,  defined  and  explained,  n.  262, 
p.  265. 

MARYLAND.  Signed  the  Dec.  of  Ind.  p.  7.  One  of  the  Confede 
ration,  p.  9.  Signed  the  Articles  of  Confederation,  p.  21 ; 
the  Constitution  of  the  United  States,  pp.  41,  252.  Quali 
fication  of  voters,  n.  17,  p.  61. 

MARYLAND.     Entitled  to  six  representatives  in  the  first  Congress.      123          23,  6T 

Five  representatives  by  census  of  lt>60,  n.  24.  p.  69. 
The  Dumber  of  inhabitants  through  each  decade,  n.  24, 
pp.  69,  70.  Assigned  to  the  fourth  judicial  circuit,  n.  197.  p 
192.  Ratified  the  18th  constitutional  amendment,  n.  274 
and  rejected  the  14th.  n.  275. 

MASSACHUSETTS.  Signed  the  l)ec.  of  Ind.  p.  7.  One  of  the  Con 
federation,  p.  9.  Sijrned  the  Articles  of  Confederation, 
p.  21.  Signed  the  Constitution  of  the  United  States,  p.  41. 
Qualification  of  voters,  n.  17,  p.  61.  Eigiit  representatives 
in  first  Congress.  Ten  representatives  in  I860,  n.  24.  p.  69. 
Number  of  inhabitants  through  each  decade,  n.  24.  pp.  69, 
70.  Assigned  to  the  first  judicial  circuit,  n.  197,  p.  192. .  123  23,67 

MASTERS  of  vessels  cannot  be  required  to  pay  a  passenger  tax, 
n.  88. 

MASTERS.  Might  seize  and  recapture  their  slaves,  n.  227,  p.  233. 
The  slaves  to  be  delivered  up  to  them,  n.  228.  Can  assign 
their  apprentices  in  Maryland,  n.  274.  p.  273. 

MATERIALS  for  ships  under  admiralty  jurisdiction,  n.  203. 

MEASURES.  The  President  shall,  fmm  time  to  time,  recommend 
to  the  consideration  of  Congress  such  measures  as  he  shall 
judge  necessary  and  expedient 231  36,183 

MEASURES.  "  Congress  has  power  to  fix  the  standard  of  weights 

and  measures 185        29.114 

To  fix  defined,  n.  101.  "Weights  and  measures  of  the 
metric  system  made  lawful,  n.  102.  p  117.  §  I.  And  con 
tracts  therein  rendered  valid,  Id.  Tables  for,  established, 
Id.  §  2.  Measures  of  length,  Id.  Of  surface,  Id.  Of  ca 
pacity,  Id.,  p.  118. 

MEETING  of  Congress.     The  census  to  be  taken  within  three  years 

of  the  first  meeting  of  Congress 1        2        3          23,67 

MEETING.  The  Congress  shall  assemble  at  least  once  in  every 
year,  and  such  meeting  shall  be  on  the  first  Monday  in 
December,  unless  they  shall  by  law  appoint  a  different 

day 1        4        2          25,83 

When  Unconstitutional  term  expires,  n.  43  The 
meetings  as  now  prescribe*!  by  law,  n.  4o.  Three  of  each 
Congrers,  Id. 

MEMBERS  of  House  of  Representatives.    (See  Representatives.) 

MEMHERS  of  the  Senate.    (See  Senators.) 

MICHIGAN.  Qualifications  for  suffrage  in.  n.  17.  Number  of  rep 
resentatives,  n.  24.  Population  in  each  decade,  n.  24,  pp. 
69,  70.  Assigned  to  sixth  judicial  circuit,  n.  197.  Ad 
mitted  into  the  Union,  n.  230.  Katified  the  18th  amend 
ment,  n.  274  ;  the  14th,  n.  275. 

MIDDLETON,  ARTHUR,  of  South  Carolina.  Signed  Dec.  of  Ind. 
p.  8. 


356 


INDEX. 


MIDDLETON,  DANIEL  "W.  Clerk  of  the  Supreme  Court  of  the  United 
States,  n.  197. 

MILITARY  arrest.  Persons  under,  to  be  tried  without  delay, 
n.  276,  p.  282,  §  4. 

Mii.iTAKY  commission.  During  the  war  could  not  try  citizens  in 
the  loyal  States,  n.  260,  p.  264.  The  sentences  of,  in  the 
re-bel  States,  how  to  be  approved,  n.  276,  p.  282,  §  4. 

MILITARY  districts.  Five  created  in  the  ten  rebel  States,  n.  276, 
p.  282,  §  1.  Duties  of  the  commanders  in  the  same,  n.  276, 
p.  284,  §  2.  1  Supplementary  Act,  pp.  2S4,  285,  §  3,  4. 
Their  power  over  the  governments  (2  Supplementary  Act), 
p.  286,  §  1.  Powers  in,  subject  to  the  supervision  of  the 
commanding  general,  p.  286,  §  2.  The  acts  of  the  officers 
already  done,  certified,  p.  287,  §  4. 

MILITARY  iaw" defined  and  classified,  n.  260,  p.  265.  Congress  can 
give  the.  power  to  try  those  connected  with  the  army  and 
navy  by  military  law,  n.  254. 

MILITARY  and  naval  offenses  may  be  punished  in  the  manner 
practiced  by  civilized  nations,  n.  254. 

MILITIA.  Congress  shall  have  power  to  provide  for  calling  forth 
the  militia  to  execute  the  laws  of  the  Union,  suppress  in 
surrections,  and  repel  invasions 1 

Militia  defined,  notes  130,  135.  The  acts  for  calling 
them  forth,  n.  130,  p.  134.  The  President  must  judge 
when  he  has  the  authority,  Id.  The  militia  is  of  the 
States,  Id.  Not  subject  to  martial  law  until  in  actual 
service,  n.  134.  Declared  national  forces,  n.  134,  p. 
136.  Differences  of  opinion  as  to  the  constitutionality, 
Id.  When  called  out  they  are  subject  to  the  articles  of 
war,  n.  135. 

MILITIA.  Congress  shall  have  power  to  provide  for  organizing, 
arming,  and  disciplining  the  militia,  and  for  governing 
such  part  of  them  as  may  be  employed  in  the  service  of 
the  United  States,  reserving  to  the  States,  respectively, 
the  appointment  of  the  officers,  and  the  authority  of  train 
ing  the  militia  according  to  the  discipline  prescribed  by 

Congress  

These  terms  defined,  n.  134.  Acts  of  Congress  upon  the 
subject  and  its  history,  n.  135. 

MILITIA.  The  President  shall  be  commander-in-chief  of  the  army 
and  navy  of  the  United  States,  and  of  the  militia  of  the 
several  States,  when  called  into  the  actual  service  of  the 

United  States 2 

The  power  of  the  President  commences  when  that  of 
the  governors  ceases,  n.  175. 

MILITIA.  A  well-regulated  militia  being  necessary  to  the  se 
curity  of  a  free  State,  the  right  of  the  people  to  keep  and 

bear  arms  shall  not  be  infringed.     Amendments  2 

This  clause  defined,  n.  249.  President  Johnson's  action, 
n.  249. 

MILITIA.  No  person  shall  be  held  to  answer  for  a  capital  or 
otherwise  infamous  crime,  unless  on  a  presentment  or 
indictment  of  a  grand  jury,  except  in  cases  arising 
in  the  land  or  naval  forces,  or  in  the  militia  when  in 
actual  service,  in  time  of  war  or  public  danger.  Amend 
ments 8 

MINISTEHS,  public.     (See  Appointments — Ambassadors.) 2 

Public  ministers  defined,  notes  180, 181. 

MINISTEHS.  public.     The  President  shall  receive  ambassadors  and 

other  public  ministers 2 

MFNII-TKIJS.    (S  e  Atnbasaadora^Comuh — Judicial  Power.) 

MINNESOTA.  Qualifications  for  suffrage  in.  n.  17.  Number  of 
representatives,  n.  24  Population  in  each  decade,  n.  24, 
pp.  69,  70.  Assigned  to  sixth  judicial  circuit,  n.  197.  Ad- 
niilted  into  the  Union,  n.  230.  Katified  the  13th  amend 
ment,  n.  274;  the  14th,  275. 

MISDEMEANORS.     All  civil   officers  shall  be  removed   from  office 

on  impeachment  for,  and  conviction  of  misdemeanors,  &c.      2 


Art.  sec.    cl. 


pp. 


8      15       29, 183 


1        8      16       29,135 


8.M71 


43,  256 


44,258 
85,  174 

2  ?.  183 


86, 185 


*  INDEX.  357 

Art.    sec.    cl.         pp 

Misdemeanors  defined  and  distinguished  from  crimes 
and  felony,  n.  194. 

MISSISSIPPI.  Qualifications  for  suffrage  in,  n.  17.  Number  of  rep 
resentatives,  n.  24.  Population  of,  in  each  decade,  n.  24, 
pp.  69,  70.  Assigned  to  fifth  judicial  circuit,  n.  197.  Ad 
mitted  into  the  Union,  n.  230.  Its  history  during  the 
rebellion,  n.  235.  Ratified  the  13th  amendment,  n.  274. 
Rejected  the  14th,  n.  275.  One  of  the  rebel  States,  n.  276, 
p.  282,  §  1.  Its  government  subject  to  military  rule,  Id. 
p.  2S6,  §  1.  Number  of  registered  voters,  n.  278. 
MISSOURI.  Qualifications  for  suffrage  in,  n.  17.  Number  of  rep 
resentatives,  n.  24.  Population  of,  in  each  decade,  n.  24. 
pp.  69,  70.  Assigned  to  eighth  judicial  circuit,  n.  197.  Ad 
mitted  into  the  Union,  n.  230.  Its  history  during  the 
rebellion,  n.  235.  Ratified  the  13th  amendment,  n.  274; 
the  14th,  n.  275. 
MONARCHICAL  government,  as  contradistinguished  from  republican 

government,  n.  233,  p.  243. 
MONEY.     Congress  shall   have   power  to  borrow  money  on   the 

credit  of  the  United  States 182        28,103 

Money  defined,  notes  S3,  84.     This  carries  the  right  to 
issue  treasury  notes  and  to  make  them  legal  tenders,  n.  83. 
Congress  shall  have  power  to  coin  money,  regulate  the 

value  thereof,  and  of  foreign  coin 1        8        5        29,114 

To  coin  money  defined,  n.  97.  Money  defined,  n.  98. 
A  history  of  regulating  the  value,  n.  99.  Legal  tenders 
considered,  n.  100. 

MONEY.  Congress  shall  have  power  to  raise  and  support  armies, 
but  no  appropriation  of  money  to  that  use  shall  be  for  a 

longer  term  than  two  years 1        8      12        29,130 

(See  Appropriations,  n.  126.) 

MONEY.  No  money  shall  be  drawn  from  the  Treasury,  but  in  con 
sequence  of  appropriations  made  by  law;  and  a  regular 
statement  and  account  of  the  receipts  and  expenditures  of 
all  public  money  shall  be  published  from  time  to  time. ...  1  9  7  81, 151 

MONEY.     No  State  shall  coin  money 1      10        1        31,153 

MONROE,  JAMES.     President,  n,  166. 

MOBEIS,  ROBERT,  of  Pennsylvania.  Signed  Dec.  of  Ind.  p.  7. 
Signed  Articles  of  Confederation^  p.  21.  Signed  the  Con 
stitution,  p.  42. 

MORRIS,  Gouv.,  of  New  York.     Signed  Articles  of  Confederation, 
p.  21.     Of   Pennsylvania.     Signed  Constitution,  pp.  42, 
252. 
MOKTON,  JOHN,  of  Pennsylvania.    Signed  Dec.  of  Ind.  p.  7. 

NAMES  of  the  members.  The  yeas  and  nays  of  the  members  of 
either  house,  on  any  question,  shall,  at  the  desire  of  one- 
fifth  of  those  present,  be  entered  on  the  journal 1  5  8  26,  8T 

NAMES  of  the  signers  of  the  Dec.  of  Ind.  pp.  7,  8.  Of  the  Articles 
of  Confederation,  p.  21.  Of  the  Constitution  of  the  United 
States,  pp.  41,  42,  252.  Of  the  States  of  the  Union, 
notes,  17,  24,  274,  275.  Of  the  Speakers  of  the  House  of 
Representatives,  n.  26,  p.  73.  Of  the  presiding  officers  of 
the  Senate,  n.  38.  Of  the  Presidents  of  the  United  States, 
n.  166,  p.  163.  Of  the  Vice-Presidents  of  the  United 
States,  n.  37,  pp  77,  7S.  Of  the  Chief-Justices,  n.  197,  p. 
192.  Of  the  Associate  Justices,  n.  197,  p.  193.  Of  the  new 
States  admitted,  n.  280,  pp.  236,  237.  Of  the  States  which 
ratified  the  Constitution,  n.  243.  Which  ratified  and  re 
jected  the  13th  constitutional  amendment,  n.  274.  And 
14th  amendment,  n.  275.  Of  the  ten  rebel  States,  n.  276. 

NATIONAL  bank.  The  States  have  the  right  to  tax  the  interest  of 
the  shareholders,  n.  74.  The  power  of  Congress  to  incor 
porate,  notes  80,  138. 

NATIONAL  forces.  All  the  citizens  of  the  United  States  declared, 
n.  135,  p.  136.  The  constitutionality  of  this  denied  and 
affirmed.  Id.  and  n.  125,  p.  132. 

NATIONAL  government.    (See  Government.} 


358 


INDEX. 


NATIONAL  securities.  A  statement  of,  n.  78,  p.  99.  The  States 
have  no  right  to  tax  them,  n.  84. 

NATIVE  born  of  Louisiana  became  citizens,  n.  220.  §  3.  All  born 
in  the  allegiance  of  the  United  States  are  native  born, 
n.  274. 

NATURAL  born  citizens.  No  person,  except  a  natural  born  citizen, 
or  a  citizen  of  the  United  States  at  the  time  of  the  adoption 
of  this  Constitution,  shall  be  eligible  to  office  of  President. 
Not  m.ide  by  law  or  otherwise ;  born,  n.  169.  Every 
per.-on  born  in  the  country  is  at  the  moment  of  birth 
prima  facie  a  citizen,  notes  169,  274,  p.  224.  (See  Citizen 
notes  2-20,  274. 

NATURALIZATION.  Congress  shall  have  power  to  establish  an  uni 
form  rule  of  naturalization 

Naturalization  defined,  n.  93.  Its  effects,  Id.  The  power 
in  Congress  is  exclusive,  Id.  Who  may  be  naturalized,  Id. 
p.  113,  and  note  274,  pp.  274,  275,  All  persons  born  or  natu 
ralized  in  the  United  States,  and  subject  to  jurisdiction 
thereof,  are  citi/.«-ns  of  the  United  States  and  of  the  State 
wherein  they  reside  (see  Citizens)^  Art.  XIV.  pp.  1,  48.) 

NAVAL  forces.  Congress  shall  have  power  to  make  rules  for  the 
government  and  regulation  of  the  land  and  naval  forces. . . 


Art.    soc.    cl. 


(For  these  rules,  see  n.  129.)  This  power  under  the 
Confederation,  Art.  IX.,  p.  14. 

NAVAL  forces.  No  person  shall  be  held  to  answer  for  a  capital  or 
otherwise  infamous  crime,  unless  on  a  presentment  of  a 
grand  jury,  except  in  cases  arising  in  the  land  or  naval 

forces.  «fce.     Amendments ..       5 

This  compared  with  the  last  recited  power  and  the  navy, 
n.  254.  Congress  may  punish  offenses  in  the  army  and 
navy,  n.  254.  Such  sentences  are  beyond  the  jurisdiction 
of  the  courts,  Id.  Congress  mav  fix  the  promotions  in,  n. 
184,  p.  181. 

NAVIQABLK  waters.  The  entire,  of  the  United  States,  covered  by 
the  admiralty  jurisdiction,  n.  203.  Without  regard  to  the 
ebb  and  flow  of  the  ocean,  Id.  Congress  may  regulate 
bridges  over,  n.  89,  p.  108. 

NAVIGATION.     Included  by  the  term  commerce,  notes  SO,  89,  274. 

NAVY.     Congress  shall  have  power  to  provide  and  maintain  a  navy.       1 

To  provide  and  maintain  defined,  n.  127.  Navy  defined, 
n.  128. 

NAVY.    The   President  shall  be  commander-in-chief  of  the  army 

and  navy 2 

(See  Commander-in-chief,  n.  175.) 

NEBRASKA.  Kule  of  suffrage  in,  n.  17,  p.  62.  Number  of  inhabit 
ants  in  1860,  n.  24,  p.  61).  Admitted  into  the  Union,  n. 
230.  Ratified  the  13th  constitutional  amendment,  n.  274; 
the  14th,  n.  275. 

NECESSARY.     Congress  shall  have  power  to  make  all  laws  which 

shall  be  necessary  and  proper 1 

Necessary  defined  and  criticised,  n.  138.  p.  139.  Com 
pared  vvith'appropriate.  n.  274.  Compared  with  absolutely 
necessary,  notes  138,  162. 

NECESSARY.  The  President  shall,  from  time  to  time,  recommend 
to  Congress  such  measures  as  he  shall  judge  necessary  and 
expedient 2 

NECESSARY.  The  Congress,  whenever  two-thirds  of  both  houses 
shall  deem  it  necessary,  shall  propose  amendments  to  this 
Constitution,  &c » 

NECESSARY.  A  well-regulated  militia  being  necessary  to  the  secu 
rity  of  a  free  State,  the  right  of  the  people  to  keep  and 

bear  arms  shall  not  be  infringed.     Amendments 2 

(See  Militia.) 

NELSON,  Jr.,  THOMAS,  <-f  Virginia.     Signed  Dec.  of  Ind.  p.  7. 

NKVAOA.  linle  of  suffrage  in,  n.  17.  p.  62.  Number  of  inhabitants 
in  I860,  n.  2t,  p.  6'J.  Assigned  to  ninth  judicial  circuit, 
n.  197.  Admitted  into  the^Union,  n.  230.  Katified  tho 
13th  constitutional  amendment,  n.  274.  The  14th,  n.  275. 


pp. 


84,167 


28,112 


14        29, 133 


44,  258 


8      13        29, 132 

2  1        35,117 

8      18        30, 138 

3  86, 183 
40, 246 
43, 256 


IXDEX. 


Art.    sec,    cl. 


NEW  HAMPSHIRE.  Signed  the  Dec.  of  Iiul.  p.  7.  One  of  the  Con 
federation,  p.  9.  Sii:ned  the  same,  p.  21.  Signed  the  Con 
stitution  of  the  United  States,  p.  41.  Rule  of  suffrage  in, 
n.  17.  p.  62. 

NEW  HAMPSHIRE.    Entitled  to  three  representatives  in  the   first 

Congress 1        2 

Three  by  the  census  of  I860,  n.  24,  p.  69.  Population 
under  each  decade,  n.  24,  pp.  €9,  70,  71.  Assigned  to  the  first 
judicial  circuit,  n.  197,  p.  192.  Ratified  the  18th  amend 
ment,  n  274.  The  14th,  u.  275. 

NEW  JERSEY.  Signed  the  Dec.  of  Ind.  p.  7.  One  of  the  Con 
federation,  p.  9.  Signed  the  Articles  of  Confederation, 
p.  21.  Signed  the  Constitution  of  the  United  States,  pp. 
41,  '252.  Qualifications  for  suffrage  in,  n.  17,  p.  62. 

NEW  JERSEY.    Entitled  to  four  representatives  in  first  Congress. .       1        2 

Three  by  the  census  of  I860,  n.  24,  p.  69.  Population 
under  each  decade,  n.  24,  pp.  69,  70,  71.  Assigned  to  the 
first  judicial  circuit,  n.  197,  p.  192.  .Ratified  the  13th 
amendment,  n.  *74;  the  14th,  n.  275 

NEW  Stales  may  be  admitted  by  the  Congress  into  this  Union 4        3 

New'States  defined,  n.  229.  Under  the  Articles  of  Con 
federation,  Art.  XI.  p.  19.  The  Confederate  States  Consti 
tution  prepared,  n.  229.  A  list  of  new  States,  and  the  con 
secutive  dates  of  their  admission,  n.  230.  The  effect  of 
enabling  acts  and  of  the  Constitution,  n.  230, 

NEW  YORK.  Signed  tne  declaration  of  Independence,  p.  7.  One 
of  the  Slates  of  the  Confederation,  p.  9.  Signed  the  articles 
thereof,  p.  21.  Signed  the  Constitution  of  the  United 
S  ates,  pp.  42,  252.  Qualification  of  voters  in.  n.  17.,  p.  63. 

NEW  YOKK.     Entitled  to  six  represent  atives  in  first  Congress....      1        2 

To  th i  rty  one  under  the  census  of  1860,  n.  24,  p.  69. 
Population  under  each  decade,  pp.  69,  70.  Assigned  to  the 
second  judicial  circuit,  n.  197.  Ratified  the  13th  consti 
tutional  am  ndment.  n.  ^74  ;  the  14th,  ri.  275. 

NOBILITY.    No  title  of  nobility  shall  be  granted  by  the  United 

States 1        9 

Nobility  defined,  n.  150.     The  reason  given,  Id. 

NOBILITY.     No  Stale  shall  grant  any  title  of  nobility 1       )0 

NOMINATE.  The  President  shall  nominate,  and,  by  and  with  the 
advice  and  consent  of  the  Senate,  shall  appoint,  ambassa 
dors,  other  public  ministers,  and  consuls,  judges  of  the 
Supreme  Court,  and  all  other  officers  of  the  Uriiied  States, 
whose  appointments  are  not  herein  otherwise  provided 

for, and  which  shall  be  established  by  law   2 

Nominate  defined,  n.  179. 

NULLIFICATION  and  secession  have  the  same  poisonous  root,  Pref. 
p.  Tii. 

OATH  or  affirmation.    Senators  when  sitting  to  try  impeachments 

shall  be  on  oath  or  affirm^  tion 1 

The  oath  in  Chase's  trial,  n.  39. 

OATH  of  the  President  of  the  United  Slates.  Before  he  enter  on 
the  execution  of  his  office,  he  shall  take  the  following  oath 
or  affirmation  :  •'  I  do  solemnly  swear  or  affirm,  that  1  will 
faithfully  execute  thu  office  of  President  of  the  United 
StaU-s,  and  will,  to  the  best  of  my  ability,  preserve, 
protect,  and  defend  the  Constitution  of  the  United 

Stales.1' 2 

This  constitutes  the  President,  above  all  o;her  officers, 
the  guardian,  protector,  and  defender  of  the  Constitution, 
n.  74. 

OATH  or  affirmation.  The  senators  and  representatives  before 
mentioned,  and  the  members  of  i  he  several  State  legisla 
tures,  and  all  executive  and  judicial  offii  ers,  both  of  the 
United  States  and  of  the  several  Mates,  shall  be  bound  by 
oath  or  affirmation  to  suppoi  t  this  Constitution,  but  no 
religious  test  shall  ever  be  required  as  a  qualihcation  to 
any  office  or  public  trust  under  the  United  Slates 6 


359 

pp. 

23,67 

23,167 
39,  234 


2        2 


23,  67 


31,152 
31, 153 


35, 171 


25,81 


35, 170 


8       40,250 


360 


INDEX. 


Art.    sec.    cl.          pp. 
The  oath  proscribed  by  the  act  of  17S9,  n.  242.     May  be 

enlarged,  Id.  and  n.  40.    It  binds  the  citizens  and  the  States 

to  support  the  Constitution,  Id.     The  test  oath  of  1862,  Id. 

Declared  unconstitutional  as  to  attorneys  in  certain  cases, 

n.  242.     Required  of  members  from  the  rebel  States,  n.  274, 

p.  283,  §  5.     The  oath  explained,  Id.  p.  287,  §  6. 
OATH  or  affirmation.    No  warrants  shall  issue  but  upon  probable      • 

cause,  supported  by  oath  or  affirmation.    Amendments...       4  44,257 

OATH  of  voters  in  the  rebel  States,  n.  286,  p.  284,  §  1. 

(See  Affirmation.) 

OBJECTIONS  of  the  President  to  bills.    (See  Sills,  n.  67.    Veto,  Id.) 
OBLIGATION  of  contracts.     No  State  shall  pass  any  bill  impairing 

the  obligation  of  contracts 1      10  131,153 

Remark  upon  this,  n.  152.      What  laws  enter  into  the 

obligation  of  the  contract,  n.  157.     (See  Contracts,  notes 

157,  158,  159,  160,  161.) 

OCCASIONS.     The  President  may,  on  extraordinary  occasions,  con 
vene  both  houses  of  Congress,  or  either  of  them 2        3  36, 183 

OFFENSE.     Nor  shall  any  person  be  subject  for  the  same  offense  to 

be  twice  put  in  jt-opardy  of  life  or  limb.     Amendments.          5  44, 258 

(See  Jeopardy.)    Ott'enso  defined,  n.  194. 
OFFENSES  against  the  law  of  nations  may  be  denned  and  punished 

byCon-re^s 1        S      It)        29,124 

Some  of  these   offenses  are   not  crimes,   n.  115.     The 

term  criticised,   Id.   and  n.  194.     (See  La^v  of  Nations, 

n.  116.) 
OFFENSES.    The  President  shall  have  power  to  grant  reprieves  and 

pardons  for  offenses  against  the  United  States 2        2        I        35,171 

(See  Reprieve — Pardon.) 
OFFENSES  against  the  laws  of  war  must  be  dealt  with  by  the  same 

laws,  n.  115 

OFFICE.    Judgment  in  cases  of  impeachment  shall  not  extend 

further  than  to  removal  from  office,  and  disqualification  to 

hold  and  enjoy  any  office  of  honor,  trust,  or  profit,  under 

the  United  States 1        S  25,82 

It  has  boen  doubted  if  it  should  fall  short  of  removal 

from  office,  n.  40. 
OFFICE.     No  senator  or  representative  shall,  during  the  time  for 

which  he  was  elected,  be  appointed  to  any  civil  office 

under  the  authority  of  the  United  States  which  shall  have 

been  created,  or  the  emoluments  whereof  shall  have  been 

increased  during  such  time 162          27,90 

The  acceptance  of  an  incompatible  office  vacates  the 

seat,  notes  62-63.     As  a  collector  cannot  also  be  an  in 
spector,  n.  63. 
OFFICE.     No  person  holding  any  office  under  the   United  States 

shall  be  a  member  of  either  house  of  Congress  during  his 

continuance  in  office 162          27,90 

The  acceptance  of  an  incompatible  office   vacates  the 

firsf,  n.   63. 
OFFICE  of  the  government.     Congress  shall  have  power  to  make  all 

laws  which  shall  be  necessary-and  proper  for  carrying  into 

execution   the  foregoing  powers,   and    all  other  powers 

vested  by   this  Constitution   in  the  government  of  the 

United  States,  <>r  in  any  department  or  officer  thereof 1        8      18        30, 13S 

OFFICE.     No  person  holding  any  office  of  profit  or  trust  under  the 

United  States,  shall,  without  the  consent  of  the  Congress, 

accept  of  any  present,  emolument,  office,  or  title,  of  any 

kind  whatever,  from  any  king,  prince,  or  foreign  State. .          1        9        8        31, 152 

This  does  not  extend  to  private  citizens,  n.  151. 
OFFICE.     The  President  shall  hold  his  office  during  the  term  of 

four  years,  and  the  Vice-President  chosen  for  the  same 

time 2        1        1        32, 162 

It  was  argued  that  the  office  being  for  a  term  of  years, 

the  President  could  not  be   subject  to  the  rule  of  good 

behavior  applicable  to  judges,  n.  194. 
OFFICE.    No  person  holding  an  office  of  trust  or  profit  under  the 

\ 


INDEX. 


361 


Art. 


sec.    cl. 
1        2 


United  States  shall  be  appointed  an  elector  of  President  or 
Vice-President  of  the  United  States 

OFFICE  of  President  United  States.  Eligibility  of  a  person  to  the 
office  of  President  of  the  United  States.  (See  Eligi 
bility.) 2  1 

OFFICE.  In  case  of  the  removal  of  the  President  from  office,  or  of 
his  death,  resignation,  or  inability  to  discharge  the,  powers 
and  duties  of  the  said  office,  the  same  shall  devolve  on  the 
Vice-President,  and  the  Congress  may,  by  law,  provide  for 
the  case  of  removal,  death,  resignation,  or  inability,  both 
of  the  President  and  Vice-President,  declaring  what  officer 
shall  then  act  as  President ;  and  such  officer  shall  act  ac 
cordingly  until  the  disability  be  removed  or  a  President 

shall  be  elected 2        1 

The  office  now  devolves  first  upon  the  Vice-President, 
next  upon  the  presiding  officer  of  the  Senate ;  and  lastly, 
upon  the  Speaker  of  the  House  of  Eepresentatives;  and 
elections  are  provided  for,  n.  172. 

OFFICE,  tenure  of.  Those  holding  to  continue,  how  long,  n.  184, 
pp.  179,  180,  §  1,  4.  The  cabinet  to  hold  during  the 
presidential  term,  subject  to  removal.  Id.  §  1.  Upon 
suspension  of  office,  duties  of,  how  performed.  Id.  §  2. 
The  effect  of  the  suspension  from.  Id.  When  offices  re 
main  in  abeyance,  Id.  p.  180,  §  3.  To  hold  contrary  to 
law,  how  punished,  Id.  §  5.  To  appoint  to,  contrary  to 
law,  how  punished,  Id.  §  6.  Duties  of  the  President  on 
naming  any  person  to  office,  n.  184,  p.  181,  §  8.  No  person 
to  be  paid  for  exercising  office  contrary  to  the  act ;  punish 
ment  for,  Id.  §  9.  The  decisions  before  the  law,  n.  184, 
p.  181. 

OFFICE.    Oath  of  office  of  President  of  the  United  States 

(See  Oath,  n.  242.) 

OFFICES.  The  President  may  require  the  opinion,  in  writing,  of 
the  principal  officers  in  each  of  the  executive  departments, 
upon  any  subject  relating  to  the  duties  of  their  respective 

offices 

As  to  who  those  seven  officers  are,  see  note  176. 

OFFICES.  The  judges,  both  ot  the  Supreme  and  Inferior  courts, 
shall  hold  their  offices  during  good  behavior,  and  shall  at 
stated  times,  receive  for  their  services  a  compensation, 
•which  shall  not  be  diminished  during  their  continuance  in 

office 3 

That  is  for  life  or  until  impeached.  See  notes  194, 
197,  198.  All  offices  to  be  established  by  the  Constitution 
or  law,  n.  181.  What  are  offices,  Id.  The  power  to 
appoint  to  includes  the  power  to  remove,  n.  184.  Now 
regulated  by  the  Tenure  of  Office  law,  Id.  p.  179. 

OFFICERS  of  the  army  and  navy  can  only  be  removed  by  court- 
martial,  n.  184,  p.  179.  Tenure  of  civil  offices— Cabinet, 
Id.  When  subject  to  suspension  and  removal,  and  the 
consequences,  Id.  Who  to  exercise  the  temporary  powers 
of,  Id.  §  2,  3.  To  be  commissioned  by  the  President 
when,  n.  184,  p.  180,  §  6. 

OFFICERS.      The  House  of   Representatives   shall  choose    their 

Speaker  and  other  officers 1 

OFFICERS.  The  Senate  shall  choose  their  other  officers,  and  also  a 
President  pro  tempore,  in  the  absence  of  the  Vice-Presi 
dent 1 

List  of  presiding  officers,  n.  38.  When  they  become 
President,  n.  172. 

OFFICERS  of  militia.    The  appointment  of  officers  of  the   militia 

reserved  to  the  States  respectively 1        8      16 

This  was  in  effect  destroyed  by  the  conscript  law,  n. 
125.  J2  2  2 

OFFICERS  of  the  United  States.    (See  Appointment*  of.) |  2        2       3 

OFFICERS.     Tlft  President  shall  commission  all  the  officers  of  the 

United  States 2        3 

OFFICERS.    All  civil  officers  of  the  United  States  shall  be  removed 

16 


pp. 
82,164 

34,167 


84,169 


1        7       85,  170 


221        35,171 


23,72 

24,178 

29, 135 

83,174 

85, 182 

86,188 


362 

Art.     sec.  cl.  pp. 

from  office  on  impeachment  for,  and  conviction  of,  treason, 

bribery,  or  other  high  crimes  and  misdemeanors 2        4  36, 185 

None  but  civil  officers  are  subject  to  impeachment, 
n.  191.  Senators  are  not,  notes  191,  194. 

OFFICERS.  All  the  executive  and  judicial  officers,  both  of  the 
United  States  and  of  the  several  Status,  shall  be  bound 

by  oath  or  affirmation  to  support  this  Constitution 6  3        41,250 

For  ttath  of  office  and  test  oath  see  n.  142. 
No  person  shall  be  a  senator  or  representative  in 
Congress,  or  elector  of  President  and  Vice-President, 
or  hold  any  office,  civil  or  military,  under  the  United 
States,  or  under  any  State,  who,  having  previously 
taken  an  oath,  as  a  member  of  Congress,  or  as  an  officer 
of  the  United  States,  or  as  a  member  of  any  State 
legislature,  or  as  an  executive  or  judicial  officer  of  any 
State,  to  support  the  Constitution  of  the  United  States, 
shall  have  engaged  in  insurrection  or  rebellion  against 
the  same,  or  given  aid  or  comfort  to  the  enemies 
thereof.  But  Congress  may,  by  a  vote  of  two-thirds 

of  each  house,  remove  such  disability.     Amendments 14        3  49,280 

This  disqualification  extended  to  members  of  the  Re 
construction  Conventions  and  to  voters  for  delegates, 
n.  276,  p.  287  §  5.  The  expurgatory  oath  to  reach  them, 
B.  276  (Supplementary  Act),  §  1.  The  disqualification  ex 
plained,  n.  276,  p.  287  §  6.  The  commanders  of  districts 
allowed  to  remove  any  officers  of  the  rebel  States,  n.  276 
(Second  Supplementary  Act),  p.  284,  §  2.  This  third  sec 
tion  discussed,  n.  281.  May  overrule  the  test  oath  as  to 
those  not  disqualified,  n.  281. 

OHIO.  Kule  of  suffrage  in,  n.  17.  Representatives  by  the  census 
of  1860,  n,  24.  Number  of  inhabitants  through  each  de 
cade,  n.  24.  pp.  69,  70.  Assigned  to  the  sixth  judicial  cir 
cuit,  n.  197.  Ratified  the  thirteenth  constitutional  amend 
ment,  n.  274  ;  the  fourteenth,  n.  275.  And  withdrew  rati 
fication,  Id. 

ONE-FIFTH  of  the  members  present.  The  yeas  and  nays  of  tho 
members  of  either  house,  on  any  question,  shall,  at  the 
desire  of  one-fifth  of  those  present,  be  entered  on 
the  journal 1  5  3  26,87 

OPINION.     The  President  may  require  the  opinion,  in  writing,  of 

the  principal  officer  in  each  of  the  executive  departments.      221        23, 171 
These   opinions,  how   given   and  by   whom,  n.  176. 

OKDAIN  and  establish  this  Constitution  for  the  United  States  of 

America,  &c.     We  the  people  do.     Preamble 22.  53 

(See  America — Constitution.) 

ORPAIN  and  establish.  The  judicial  power  of  the  United  States 
shall  be  vested  in  one  Supreme  Court,  and  in  such  in 
ferior  courtp  as  the  Congress  may,  from  time  to  time, 

ordain  and  establish 311        30,189 

As  Congress  has  the  power  to  establish,  it  may  regulate 
the  jurisdiction,  n.  186. 

ORDEB,  resolution,  or  vote,  to  which  the  concurrence  of  the  Senate 
and  House  of  Representatives  may  be  necessary,  except 
on  questions  of  adjournment,  shall  be  presented  to  the 

President .' 173          28,93 

(See  Concurrence — Resolution.) 

OREGON.  Rule  of  suffrage  in,  n.  17,  p.  63.  One  representative 
under  the  census  of  1860,  n.  24,  p.  69.  Number  of  inhab 
itants  under  the  decades,  n.  24,  pp.  69,  70.  Treaty  with 
Great  Britain  in  relation  to,  n.  178,  p.  175.  Assigned  to 
the  ninth  judicial  circuit,  n.  197,  p.  192.  Ratified  the  thir 
teenth  constitutional  amendment,  n.  274.  And  the  four 
teenth,  n.  275. 

ORGANIZING  the  militia.     Congress  shall  have  power  to  provide 

for  organizing,  arming,  and  disciplining  the  militia 1        8      16        29, 135 

(See  Militia.)  «- 

OBIGINAL  jurisdiction.  In  all  cases  affecting  ambassadors,  other 
public  ministers,  and  consuls,  and  those  in  which  a  btalu 


INDEX. 


363 


Art.    sec.    cl. 


pp. 

ST,  204 


1  27, 90 

2  27, 91 
1        38, 211 

44,256 

3  39, 232 


shall  be  a  party,  the  Supreme  Court  shall  have  original 
jurisdiction 3        2 

This  original  jurisdiction  is  confined  to  two  classes  of 
cases,  defined,  n.  210,  p.  203.    Co-extensive  with  the  judi 
cial  | lower.  Id.    Restricts  Congress,  n.  210.    (See  Jurisdic 
tion,  notes  210,  211.) 
ORIGIN ATK.     All  bills  for  raising  revenue  shall  originate  in  the 

House  of  Representatives 1        7 

The  reason  of  this  rule,  n.  64.     Revenue  defined,  n.  65. 
ORIGINATED.     Every  bill,  resolution,  order,  or  vote,  not  approved, 
shall  be  returned  by  the  President,  with  his  objections,  to 

that  house  in  which  it  shall  have  originated 1        7 

When  returned,  n.  68. 
OVEKT  act.     No  person  shall  be  convicted  of  treason,  unless  on 

the  testimony  of  two  witnesses  to  the  same  overt  act 3        3 

(See  Treason,  n.  215.) 
OWNER.     No  soldier  shall,  in  time  of  peace,  be  quartered  in  'any 

house  without  the  consent  of  the  owner.     Amendments.      3 

The  occupant  is  the  owner,  n.  250. 

OWNERS  of  slaves.  No  person  held  to  service  or  labor  in  one 
State,  under  the  laws  thereof,  escaping  into  another,  shall, 
in  consequence  of  any  law  or  regulation  therein,  be  dis 
charged  from  such  service  or  labor,  but  shall  be  delivered 
up  on  claim  of  the  party  to  whom  such  service  or  labor 

may  be  due 4        2 

Person  and  State  defined,  n.  226.  Escaping  defined, 
n.  227.  The  owner  was  clothed  with  full  authority  to  re 
capture,  n.  227. 

PACA,  WILLIAM,  of  Maryland.    Signed  the  Dec.  of  Ind.  p.  7. 

PAINE,  ROBERT  TREAT,  of  Massachusetts  Signed  the  Dec.  of  Ind. 
p.  7. 

PAPERS.  The  right  of  the  people  to  be  secure  in  their  effects 
against  unreasonable  searches  or  seizures  shall  not  be  vio 
lated.  Amendments 4  44,257 

People,  and  searches  and  seizures,  defined,  n.  251.  War 
rant  defined  and  the  reasons  given,  n.  252. 

PARDONS.     The  President  shall  have  power  to  grant  pardons 221        35,171 

Pardon  defined,  n.  177.  May  be  granted  as  well  before  as 
after  trial,  n.  177.  The  extent  of  the  pardon;  it  must  be 
accepted;  it  blots  out  the  offense,  n.  177.  p.  173.  The  ef 
fect  of  the  pardon  of  the  rebels,  notes  46, 177,  p.  174.  As  to 
whether  it  overcame  the  test  oath,  n.  46.  Did  not  give  the 
right  to  vote  or  hold  office  in  the  rebel  States,  n.  276 
(Second  Supplementary  act),  p.  288,  §  7. 

PARSONS,  R.  C.  United  States  Marshal,  n.  l'J7. 

PASS  any  bills.     No  State  shall  pass  any  bill   of  attainder,  ew  post 

"facto  law,  or  law  impairing  the  obligation  of  contracts. ...      1      10        1        31,153 

(See  Attainder,  note,  n.  142.  Ex  pout  facto,  notes  143, 
156.) 

PASSED  the  House  of  Representatives  and  Senate.  Every  bill, 
resolution,  &c.,  passed  by  the  House  of  Representatives 
and  Senate,  shall  be  presented  to  the  President,  «&c 1 

PASSED.     Bills,  resolutions,   &c.,  returned  by  the  President,  may 

be  passed  be  two-thirds  of  both  houses 1 

(See  .£*««,  n.  66-70.) 

PATENT  rights.  Congress  shall  have  power  to  promote  the  pro 
gress  of  science  and  useful  arts,  by  securing  for  limited 
times  to  authors  and  inventors  the  exclusive  right  to  their 

respective  writings  and  discoveries 1 

See  the  terms  defined  and  discussed,  notes  107,  108. 

PATENT  office.     Description  of,  n.  108. 

PATENTS  are  to  be  liberally  construed,  n.  108. 

PATERSON,  WILLIAM,  of  New  Jersey.  Signed  the  Constitution, 
p.  42.  Associate  Justice,  n.  197,  p.  193. 

PAY  the  debts  of  the   United  States.     Congress  shall  have   power 

to  pay  the  debts  of  the  United  States 181          28,94 

The  object  of  this  phrase,  u.  78.    The  amount  of  the 


27,91 
27,91 


364 


INDEX. 


10        3 


26,83 
32,  101 

44,  256 


25,64 


Art.    sec.    cl.          pp. 

debts  since  the  foundation  of  the  government,  n.  78,  pp. 
97, 100.    (See  Public  Debt.) 

PAYMENT  of  debts.     No  State  shall  make  any  thing  but  gold  and 

silver  coin  a  tender  in  payment  of  debts 1      10        1        81,153 

But  Congress  may  issue  treasury  notes  and  make  them 

a  lesral  tender  in   the  payment  of  debts,  notes  84,  97,  100. 

(See  Arrest.) 

PEACE.     For  a  breach  of  the  peace  a  senator  or  representative 

may  be  arrested 1 

PEACE.    No  State  shall,  without  the  consent  of  Congress,   keep 

troops  or  ships  of  war  in  time  of  peace 1 

PEACE.    No    soldier  shall,  in  time  of  peace,  be  quartered  in  any 

house  without  the  consent  of  the  owner.    Amendments. .       3 
(See  Houfte.) 

PECK,  JAMES  H.     Trial  of,  notes  36, 194. 

PENALTIES.  Each  house  may  be  authorized  to  compel  the  at 
tendance  of  absent  members,  in  such  manner  and  under 
such  penalties  as  each  house  may  provide 1 

PENN,  JOHN,  of  North  Carolina.  Signed  Dec.  of  Ind.  p.  T. 
Signed  Articles  of  Confederation,  p.  21. 

PENNINGTON,  WILLIAM.  Speaker  of  the  House  of  Representa 
tives,  n.  26. 

PENNSYLVANIA.  Signed  the  Dec.  of  Ind.  p.  7.  One  of  the  Con 
federation,  p.  9.  Signed  the  articles  thereof,  p.  21.  Signed 
the  Constitution,  pp.  42,  252.  Qualifications  of  voters, 
n.  17,  p.  63. 

PENNSYLVANIA.  Entitled  to  eight  representatives  in  first  Con 
gress 1  2  8  28,67 

Twenty-four  under  the  census  of  1860,  notes  24,  28,  67, 
pp.  63,  69.  Qualification  of  suffrage,  n.  17.  Population 
under  each  decade,  n.  24,  pp.  69",  70.  Assigned  to  the 
third  judicial  circuit,  n.  lit.  Ratified  the  thirteenth 
constitutional  amendment,  n.  274  ;  the  fourteenth,  n.  275. 

PEOPLE   United   States  ordain  and  establish   this  Constitution. 

Preamble 22, 53 

By  the  people,  not  by  the  State  in  their  sovereign 
capacity.  How  by  the  people.  Compared  with  citizens, 
notes  6,  16,  17,  24,  220,  221,  274,  281. 

PEOPLE.     Members  of   House  of  Representatives  to  be  chosen 

every  second  year  by  the  people  of  the  several  States 1        2        1          22, 56 

The  people  here  defined  and  compared.  The  real  actors 
are  the  voters,  n.  16. 

PEOPLE  represented  are — all  free  persons,  those  bound  for  a  term 
of  years,  Indians  taxed,  and  three-fifths  of  all  other  per- 

eons 1        2        3          23,67 

That  is  two-fifths  only  of  the  slaves  were  excluded, 
n.  24.  The  free  blacks  were  always  counted,  n.  24. 

PEOPLE.  The  enumeration  of  the  people  to  be  made  within  three 
years  after  the  first  meeting  of  Congress,  and  every  ten 
vears  thereafter,  in  such  manner  as  they  may  by  law 

direct 1        2        8          23,67 

The  result  of  these  various  enumerations,  notes  24, 
69-71. 

PEOPLE.  Congress  shall  make  no  law  abridging  the  rights  of  the 
people  peaceably  to  assemble  and  to  petition  the  govern 
ment  for  a  redress  of  grievances.  Amendments 

PEOPLE.     The  right  of  the  people  to  keep  and  bear  arms  shall  not  43  254 

be  infringed.     Amendments 2  43,256 

Here  used  in  the  broad  sense  of  the  preamble,  n.  248. 

PEOPLE.  The  right  of  the  people  to  be  secure  in  their  persons, 
houses,  papers,  and  effects,  against  unreasonable  searches 
and  seizures,  shall  not  be  violated;  and  no  warrants  shall 
issue  but  upon  probable  cause,  supported  by  oath  or  affir 
mation,  and  particularly  describing  the  place  to  be 
searched,  and  the  persons  or  things  to  be  seized.  Amend 
ments  4  44,25T 

(See  note  249.) 

FJBOPLK.    The  enumeration  in  the  Constitution  of  certain  rights, 


INDEX. 


865 


Art.    sec.    cl. 


pp. 
45,  263 


shall  not  be  construed  to  deny  or  disparage  others  retained 

by  the  people.    Amendments 

Here  used  in  the  sense  of  the  preamble,  n.  268. 

PEOPLE.  The  powers  not  delegated  to  the  United  States  by  the 
Constitution,  nor  prohibited  by  it  to  the  States,  are  re 
served  to  the  States  respectively,  or  to  the  people.  Amend 
ments 10  45, 269 

PEOPLE  of  the  rebel  States.      When  they  shall  have  formed  a  con 
stitution,  n.  276,  p.  283,  §  5.      Until  the  people  shall  have 
been  admitted  to  representation  in  Congress.  Id.  §  6.  (See 
Person.) 

PERSON.  Qualification  of  a  person  to  be  a  representative  in  Con 
gress 122  23,66 

(And  see  Qualifications,  n.  46.) 

PERSON.    Qualification  of  a  person  to  be  a  senator  in  Congress  ...       1        3       3         24, 7T 

Person  defined  and  criticised.  Is  masculine,  notes  16, 
35,46. 

PERSON.  No  person  shall  be  convicted  on  an  impeachment  with 
out  the  concurrence  of  two-thirds  of  the  senators  present-  1  3  6  2  5,  81 

PERSON.  No  person  holding  any  office  under  the  United  States 
shall  be  a  member  of  either  house  during  his  continuance 

in  office 1        6       2         27,90 

The  reason  and  effects  of  such  disqualification  defined 
and  discussed,  notes  25,  62,  63,  150,  151. 

PERSON.  No  person  holding  any  office  of  profit  or  trust  under  the 
United  States,  shall,  without  the  consent  of  the  Congress, 
accept  of  any  present,  emolument,  office,  or  title,  of  any 
kind  whatever,  from  any  king,  prince,  or  foreign  State  ...  198  31,152 

This  inhibition  extends  to  none  but  office-holders, 
n.  151. 

PERSON.  No  person,  holding  an  office  of  trust  or  profit  under  the 
United  States,  shall  be  appointed  an  elector  of  President 
and  Vice-President 212  32,164 

PERSON.  Eligibility  of  a  person  to  be  President  or  Vice-Presi 
dent  of  the  United  States.  (See  Eligibility.) 2  1  4  34,  167 

PERSON.  No  person  shall  be  convicted  of  treason  unless  on  the 
testimony  of  two  witnesses  to  the  same  overt  act,  or  on 
confession  in  open  court 381  38,211 

PERSON.    No  attainder  of  treason  shall  work  corruption  of  blood 

or  forfeiture  except  during  the  life  of  the  person  attainted.      832        38,  213 

This  extends  to  every  manner  of  person,  n.  223.  The 
definition  is  only  limited  by  other  requirements  of  the 
clause,  notes  223,  224. 

PERSON.  A  person  charged  in  any  State  with  treason,  felony,  or 
other  crime,  who  ahall  flee  from  justice  and  be  found  in 
another  State,  Phall,  on  demand  of  the  executive  autho 
rity  of  the  State  from  which  he  fled,  be  delivered  up,  to 

be  removed  to  the  State  having  jurisdiction  of  the  crime.      422        88,229 
Person  defined  to  mean  every  person,  n.  253. 

PEKSOX.  No  person  held  to  service  or  labor  in  one  State,  under 
the  laws  thereof,  escaping  into  another,  shall,  in  conse 
quence  of  any  law  or  regulation  therein,  be  discharged 
from  such  service  or  labor,  but  shall  be  delivered  up  on 
claim  of  the  party  to  whom  such  service  or  labor  may  bo 

due 428       39,233 

Person  is  limited  in  practice  to  slaves  and  apprentices, 
notes  236,  237. 

PKRSON.  No  person  shall  be  held  to  answer  for  a  capital  or  other 
wise  infamous  crime,  unless  on  a  presentment  or  indict 
ment  of  a  grand  jury,  except  in  cases  arising  in  the  land  * 
or  naval  forces,  or  in  the  militia  when  in  actual  service  in 
time  of  war  or  public  danger;  nor  shall  any  person  be 
subject,  for  the  same  offense,  to  be  twice  put  in  jeopardy 
of  life  or  limb ;  nor  ahall  be  compelled,  in  any  criminal 
case,  to  be  a  witness  against  himself;  nor  be  deprived  of 
life,  liberty,  or  property,  without  due  process  of  law;  nor 
phall  private  property  be  taken  for  public  use  without  just 
compensation.  Amendments 5  44,258 


366  INDEX. 

Art.    sec.  cl.         pp. 

Person  here  embraces  both  sexes,  notes  170,  251-256. 

Practically  the  slaves  and  people  of  color  were  excluded. 

n.  25:1     The  other  phrases  defined  and  discussed,  notes 

253-263. 

PERSONAL.    The  disability  of  an  alien  to  maintain  a  real  action 

is  personal,  n.  '210,  p.  204. 

PERSONAL  privilege.     The,  privilege  of  the  writ  of  habeas  corpus 
shall  not  be  suspended,  unless  when,  in   cases  of  rebellion 

or  invasion,  the  public  safety  may  require  it 1        9        2        SO,  140 

The  power  to  issue  the  writ  is  not  the  privilege;  to  ask 
for  it  is,  n.  140.  See  note  221. 

PKUSONS.  There  are  many  who  believe  that  the  fourteenth  amend 
ment  has  been  ratified,  n.  275,  p.  281.  The  military  dis 
trict  commander  to  protect  persons  and  property  in  the 
rebel  States,  n.  276,  p.  282,  §  3.  All  persons  put  under 
military  arrest  shall  be  triid,  &c.  Id.  §  4.  To  vote  with 
out  distinction  of  race  or  color,  Id.  p.  28o,  §  5.  The  persons 
appointed  to  superintend  the  election,  Id.  p.  284,  §  3.  To 
ascertain  the  persons  elected  delegates,  Id.  p.  285,  §  4. 
The  constitutions  to  be  ratified  by  a  majority  of  the  per 
sons  registered,  Id.  §  4.  The  commanding  generals  to 
remove  any  persons  who  oppose  reconstruction,  n.  276, 
p.  286.  §  2,  3.  The  acts  of  the  officers  in  removing  persons 
ratified,  n.  276,  p.  287,  §  4.  To  remove  all  persons  who  are 
disloyal  or  who  oppose  reconstruction,  Id.  §4.  The  boards 
of  registration  to  ascertain  the  qualifications  of  persons  to 
vote,  Id.  §  5.  No  person  disqualified  as  a  member  of  a 
board  on  account  of  race  or  color,  Id.  All  persons  who 
have  held  civil  offices  disqualified,  n.  276,  pp.  287,  288,  §  6. 
The  registrations  to  be  corrected  as  to  persons  qualified 
and  disqualified,  Id.  §  7.  All  persons,  &c.,  requjivd  to 
take  the  oath  of  office.  Id.  §  9.  The  persons  in  the  second 
section  of  the  fourteenth  amendment  applied  to  free  per 
sons  of  color,  n.  277.  Nearly  four  and  a  half  million  of 
these,  n.  277,  p.  289.  Probably  one  hundred  thousand  per 
sons  were  excluded  under  these  acts,  n.  278.  The  second 
section  of  the  fourteenth  amendment  more  clearly  defines 
who  of  the  persons,  now  citizens,  shall  be  counted  in  the 
basis  of  representation,  n.  2SO.  There  are  persons  who 
claim  the  power  in  Congress  to  prescribe  a  rule  of  sulfrage, 
notes  18,  41,  280,  n.  274,  p.  275.  Women,  minors,  and  per 
sons  non  comjwH  mentis  are  citizens,  n.  274,  p.  275.  (See 
Citizen.)  Estimate  of  the  loss  of  persons  by  the  civil 
war,  n.  '278.  The  President's  views  as  to  the  persons  who 
cannot  take  the  official  oath,  n.  284.  The  effect  of  the 
fourteenth  amendment  upon  such  persons,  n.  285.  The 
issues  in  regard  to  persons  stated,  Id.  p.  293. 
PERSONS  or  people  of  the  United  States  ordain  and  establish  this 

Constitution.     Preamble 22,53 

PERSONS  or  people  of  the  several  States  choose  members  of  House 

of  Representatives  every  second  year 121          22,56 

PEKSONH  or  people  to  be  enumerated  every  ten  years,  in  such  man 
ner  as  Congress  may  by  law  direct 123  23,167 

(Sect  the  result  of  these  enumerations,  n.  24.) 

PERSONS  constituting  representative  numbers  to  be  embraced  in 
census  are.  all  free  persons,  those  bound  for  a  term  of 
yea's,  Indians  taxed,  and  three-fifths  of  all  other  persons, 

(slaves) 123         23,  CT 

This  means  all  except  two-fifths  of  the  slave*  ar.d  the 
Indian  tribes,  n.  24,  p.  68.  Who  to  be  excluded  unless 
they  be  allowed  to  vote,  n.  280. 

PfeMom  convicted  on  an  impeachment  shall,  nevertheless,  be 
liable  and  subject  to  indictment,  trial,  judgment,  and 

punishment 1        3        7          25,82 

(See  Impede/intent,  notes  39,  40,  194.) 

PERSONS.     When  the  yeas  and  nays  are  ordered,  the  names  of  per 
sons  (members)  voting  shall  be  entered  on  the  journal... .      172          27,91 
The  migration  or  importation  of  persons  (slaves)  shall 


INDEX. 


367 


Art.    sec.    cL          pp. 

not  be  prohibited  prior  to  1SO&,   but  a  tax  or  duty  may  be 
imposed  on  such  importation  not  exceeding  ten  dollars  for 

eaehpcrson 1        9        1        30,140 

"•  Persons'1  here  relates  to  imported  Africans,  n.  139. 
PERSONS  voted  for  as  President  and   Vice-President  to  be  named 

in  the  ballots.     Amendments 12  1        46,164 

PINCKNEY.  CHARLES,  of  South  Carolina.     Signed  the  Constitution, 

pp.  4'2,  252. 
PIXCKNKY,  CHARLES  COTESWORTH,  of  South  Carolina.    Signed  the 

Constitution,  pp.  42,  252. 

PIRACIES.  Congress  shall  have  power  to  define  and  punish  piracies 
and  felonies  committed  on  the  high  seas,  and  offenses 

against  the  law  of  nations 1        8      10        29,124 

"  Piracy "  and  "  pirate  "  defined,  n.  112.  The  punish 
ment  is  death,  n.  111.  Offenses  and  law  of  nations  defined 
and  discussed,  notes,  115,  116. 

POINPKXTER,  GEO.     Presiding  officer  of  the  Senate,  n.  88,  p.  SO. 
POLK,  JAMES  K.    Speaker  of  the  House  of  Representatives,  n.  26. 

President,  n.  166. 

PORTS.  No  preference  shall  be  given,  by  any  regulation  of  com 
merce  or  revenue,  to  the  ports  of  one  State  over  those  ot 
another:  nor  sh:ill  vessels  bound  to  or  from  one  State,  be 

obliged  to  enter,  clear,  or  pay  duties  in  another 1        9        6        31, 150 

(See  Preference,  n.  146  ;   Vexttls,  n.  148.) 

POSTERITY.  The  Constitution  established  in  order  to  secure  the 
blessings  of  liberty  to  ourselves  and  to  our  posterity. 

Preamble 22, 55 

POST-OFFICES  and  post-roads.  Congress  shall  have  power  to  es 
tablish  post-offices  and  past-roads 187  25,119 

Post-offices  defined,  and  history  of,  n.  105.     Post-roads 
defined,  and  length  of,  n.  106. 
POWER  of   Impeachment.     The  House  of  Representatives  shall 

have  the  sole  power  of  impeachment 1        2        5         23,72 

(See  Impeachment,  notes  26,  39,  40,  191-194.) 

POWER.     Congress  shall  have  power.    (See  Congress.) 1        8  2R,94 

This  power  defined  and  compared  with  other  sections 
and  clauses,  n.  71. 

POWER.  The  Senate  shall  have  the  sole  power  to  try  all  impeach 
ments 136  25,8* 

POWER.     The  executive  power  shall  be  vested  in  a  President  of 

the  United  States  of  America 2        1        1        32,162 

The  executive  power  defined,  and  distinguished  from, 

what  is  merely  ministerial,  n.  165.     Why  lodged  in  one 

head.  Id.  List  of  the  Presidents  and  dates  of  service,  n.  166. 

POWER.    The  President  shall  have  power  to  grant  reprieves  and 

pardons  for  offenses  against  the  United  States,  except  in 

cases  of  impeachment 221        35,171 

When  this  power  may  be  exescised,  n.  177,  p.  172.  It  is 
unlimited,  and  b.-yond'the  control  of  Congress  as  to  its 
effect,  n.  177.  p.  173.  Reprieves  and  pardons  defined  and 
discussed,  notes  176,  177. 

POWER.  The  power  ol  the  President  in  making  treaties,  appoint 
ments,  &c.  (See  President) 222  35,174 

This  subject,  discussed,  notes  179-184. 

POWER.    (See  Judicial,  Power.) 321        37,194 

Judicial  power  contradistinguished  from  legislative 
and  executive ;  defined  and  why  created ;  does  not  ex 
tend  to  all  questions,  only  to  cases.  This  explained, 
notes  195,  199. 

POWER.  The  judicial  power  of  the  United  States  shall  not  be  con 
strued  to  extend  to  any  suit,  in  law  or  equity,  com 
menced  or  prosi-cuted  against  one  of  the  United  States  by 
citizens  <»t  another  State,  or  by  citizens  or  subjects  of  any 

foreign  State.     Amendments 11  46,269 

What  this  amends,  and  the  effect  thereof,  notes  205a, 
268. 

POWERS  herein  granted  vested  in  Congress.    All  legislative 1        1  22,68 

(See  LeyitilaUve  Power,  n.  56 ;  Congress,  n,  15.) 


368  INDEX. 

Art.  sec.    cL  pp. 

POWERS.  Congress  shall  have  power  to  make  all  laws  which  shall 
be  necessary  and  proper  for  carrying  into  execution  the 
fort-going  powers,  and  all  other  powers  vested  by  this 
Constitution  in  the  sroverntnent  of  the  United  States,  or 

any  department  or  officer  thereof 1        8      IS        80,138 

(See  Conr/retSi  notes  123,  274.) 

POWERS.  In  case  of  the.  inability  of  the  President  to  discharge 
the  powers  and  duties  of  the  office,  the  same  shall  devolve 

on  the  Vice- President 216        84,169 

The  Yice-Presidents  who  have  thus  succeeded  to  the 
Presidency,  n.  172,  p.  170. 

POWERS.  The  powers  not  delegated  to  the  United  States  by  the 
Constitution,  nor  prohibited  by  it  to  the  States,  are  re 
served  to  the  States  respectively,  or  to  the  people. 

Amendments 10  45,269 

The  powers  defined.   "Delegated1'  defined.   '•'•Expressly 
delegated"  not  meant,  n.  269. 

PREFERENCE  regarding  ports  of  States.  No  preference  shall  be 
given  by  any  regulation  of  commerce  or  revenue  to  the 
ports  of  one  State  over  those  of  another;  nor  shall  ves 
sels  bound  to  or  from  one  State  be  obliged  to  enter,  clear, 

or  pay  duties  in  another 1        9        6        81,150 

u  Preference  "  defined,  n.  149.    The  other  terms  defined, 
notes  146.  147,  148. 

PREJUDICE  of  claims.  Nothing  in  this  Constitution  shall  be  so 
construed  as  to  prejudice  any  claims  of  the  United  States, 

or  of  any  particular  State 4        3        2        89,238 

This  was  not  to  exclude  the  claim  of  any  State  to  its 
public  land,  n.  222,  p.  242. 

PRESENT.  No  person  shall  oe  convicted  on  an  impeachment  with 
out  the  concurrence  of  two-thirds  of  the  senators  present.  186  25,  81 

PRESENT.  The  yeas  and  nays  of  the  members  of  either  bouse  on 
any  question  shall,  at  the  desire  of  one-fifth  of  those 
present,  be  entered  on  the  journal 1  5  8  26, 87 

PRESENT.  No  title  of  nobility  shall  be  granted  by  the  United 
States;  and  no  person  holding  any  office  of  profit  or  trust 
under  them,  shall,  without  the  consent  of  the  Congress, 
accept  of  any  present,  emolument,  office,  or  title,  of  any 
kind  whatever,  from  any  king,  prince,  or  foreign  State. ..  198  81,152 

The  prohibition  does  not    extend  to  private  citizens, 
n.  151,  p.  153. 

PKESMTTED.  Every  bill,  order,  resolution,  or  vote,  to  which  the 
concurrence  of  the  Senate  and  House  of  Representatives 
may  be  necessary,  &c.,  shall  be  presented  to  the  Presi 
dent (  1  7  2  27,91 

(See  Bill,  notes  66,  69.)  (1        7        8          27,98 

PRESENTMENT  of  a  grand  jury.  No  person  shall  be  held  to  answer 
for  a  capital  or  otherwise  intamous  crime,  unless  on  a  pre 
sentment  or  indictment  of  a  grand  jury,  except  in  cases 
arising  in  the  land  or  naval  forces,  or  in  the  miljtia  when 
in  actual  service  in  time  of  war  or  public  danger.  Amend 
ments  5  4-1, 258 

"  Presentment,"   "  Indictment,"  and    "  Grand    Jury," 
defined,  n.  258. 

PUKSERVE  the  Constitution.  The  President  of  the  United  States 
shall  take  an  oath  or  affirmation,  to  preserve,  protect,  and 

defend  the  Constitution 2        1         •        85,170 

The  President  is  the  only  officer  required  to  take  this 
oath,  n.  174. 

PI-KSIDENT  of  the  Senate.    (See  Senate  of  the  United  States.) 
(See  Senate  of  the  United  States.) 
Pro  tempore  "  defined,  n.  88.     List  of  the  presiding 
officers  of  the  Senate,  pp.  78-81. 

PRESIDENT  of  the  United  States.  The  Senate  shall  choose  a  Presi 
dent  pro  tempore  when  the  Vice-President  shall  act  as. . .  1  3  5  24,  78 

PRESIDENT  of  the  United  States  is  tried  by  the  Senate  on  an  im 
peachment  The  chief-justice  shaft  preside,  when  the 186  25,81 

PRESIDENT  of  the  United  States.    Every  bill  which  shall  have 


INDEX. 


369 


passed  the  House  of  Representatives  and  the  Senate, 
shall,  before  it  become  a  law,  be  presented  to  the  Presi 
dent  of  the  United  States;  if  he  approve  he  shall  sign  it, 
if  not,  he  shall  return  it,  with  his  objections,  to  'that 
house  in  which  it  shall  have  originated,  who  shall  enter 
the  objections  at  large  on  their  journal,  and  proceed  to 
reconsider  it  (See  Bill.)  ...............................  1 

See  the  veto  power  discussed,  n.  67. 

PKEBIDENT  of  the  United  States.  If  any  bill  shall  not  be  returned 
by  the  President  within  ten  days  (Sundays  excepted)  after 
it  shall  have  been  presented  to  him,  the  same  shall  be  a 
law,  in  like  manner  as  if  he  had  signed  it,  unless  the 
Congress,  by  their  adjournment,  prevent  its  return  ;  in 
which  case  it  shall  not  be  a  law.  (See  Bill.)  .............  1 

The  President  should  receive  the  bill  ten  entire  days 
before  the  adjournment,  n.  69. 

PRESIDENT  of  the  United  States.  Every  order,  resolution,  or 
vote,  to  which  the  concurrence  of  the  Senate  and  House 
of  Representatives  may  be  necessary  (except  on  a  ques 
tion  of  adjournment),  shall  be  presented  to  the  President 
of  the  United  States,  and,  before  the  same  sliall  take  effect, 
shall  be  approved  by  him;  or.  being  disapproved  by  him, 
shall  be  repassed  by  two-thirds  of  the  Senate  and  House 
of  Representatives.  (See  Resolution.)  ..................  1 

When  a  joint  resolution  becomes  a  law,  n.  70. 
PRESIDENT  of  the  United  States.  The  executive  power  shall  be 
vested  in  a  President  of  the  United  States  of  America. 
He  shall  hold  his  office  during  the  term  of  four  years,  and, 
together  with  the  Vice-President,  chosen  for  the  same 
term,  be  elected  as  follows  ..............................  2 

Electors  appointed.  Each  State  shall  appoint,  in  such 
manner  as  the  legislature  thereof  may  direct,  a  number 
of  electors  equal  to  the  whole  number  of  senators  and 
representatives  to  which  the  State  may  be  entitled  in  the 
Congress;  but  no  senator  or  representative,  or  person 
holding  an  office  of  trust  or  profit  under  the  United  States, 
shall  be  appointed  an  elector  ............................  2 

The  mode  of  choosing  electors,  n.  167. 

Electors'  proceedings.  The  electors  shall  meet  in  their 
respective  States  and  vote  by  ballot  for  President  and 
Vice-President,  one  of  whom,  at  least,  shall  not  be  an  in 
habitant  of  the  same  State  with  themselves.  They  shall 
name  in  their  ballots  the  person  voted  for  as  President, 
and,  in  distinct  ballots,  the  person  voted  for  as  Vice- 
President;  and  they  shall  make  distinct  lists  of  all 
persons  voted  for  as  President,  and  of  all  persons  voted  for 
s  Vice-President,  and  of  the  number  of  votes  for  each, 


Art.     sec.    cL. 


which  lists  they  shall  sign  and  certify,  and  transmit  sealed 
to   the    seat  of   the    government  of   the   United    States, 


12 


directed  to  the  President  of  the  Senate.      Amendments.. 

The  Constitution  before  amendment,  n.  168.  The  acts 
of  Congress  about  the  election. 

Electoral  votes  opened  and  counted.  The  President  of 
the  Senate  shall,  in  presence  of  the  Senate  and  House  of 
Representatives,  open  all  the  certificates,  and  the  votes 
shall  then  be  counted;  the  person  having  the  greatest 
number  of  votes  for  President  shall  be  the  President,  if 
such  number  be  a  majority  of  the  whole  number  of  elec 
tors  appointed.  Amendments  ...........................  12 

Election  by  House  of  Representatives.  And  if  no  per 
son  have  such  majority,  then  from  the  persons  having  the 
highest  numbers,  not  exceedins  three,  on  the  list  of  those 
voted  for  as  President,  the  House  of  Representatives  shall 
choose,  immediately,  by  ballot,  the  President.  But,  in 
choosing  the  President,  the  votes  shall  be  taken  by  States, 
the  representation  from  each  State  having  one  vote  :  a 
quorum  for  this  purpose  shall  consist  of  a  member  or 
members  from  two-thirds  of  the  States,  and  a  majority  of 

16* 


pp. 


27,19 


27,91 


27. 


32, 1C2 


32,164 


1        46,  IG4 


40,165 


370  INDEX. 

Art.    BCC.  cl.  pp. 

all  the  States  shall  be  necessary  to  a  choice.    Amend 
ments 12  1        47,168 

Election   fulling,  the  Vice-President  shall  act.     And  if 

the  House  of  Representatives  shall  not  choose  a  President, 

whenever  the  right  of  choice  t^nall  devolve  upon  them, 

before  the  fourth  of  March  next  following,  then  the  Vice- 
President  shall  act  as  President,  as  in'the  case  of  the 

death  or  other  constitutional  disability  of  the  President. 

Amendments 

PRESIDENT  of  the  United  States.    No  person  except  a  natural  born    12  1        47,165 

citizen,  or  a  citizen  of  the  United  States  at  the  time  of  the 

adoption  of  this  Constitution,  shall  be  eligible  to  the  office 

of  President;  neither  shall  any  person  be  eligible  to  the 

office  who  shall  not  have  attained  to  the  age  of  35  years, 

and  been  fourteen  years  a  resident  within  the  United  States.      214        34,167 
The  several  qualifications  defined  and  discussed,  notes 

169,  170,  171. 
PRESIDENT  of  the  United  States.    In  case  of  the  removal  of  the 

President  from  office,  or  of  his  death,  resignation,  or  in 
ability  to  discharge  the  powers  and  duties  of  the  said  office, 

the  same  shall  devolve  on  the  Vice-President ;   and  the 

Congress  may,  by  law,  provide  for  the  case  of  removal. 

death,  resignation,  or  inability,  both  of  the  President  and 

Vice-President,  declaring  what  officer  shall  then  act  as 

President,  and  such  officer  shall  act  accordingly,  until  tho 

disability  be  removed,  or  a  President  shall  be  elected    ...       2        1        5        84, 169 
The  acts  of   Congress  for  filling  vacancies,  n.  172,  §  8,  9. 

A  list  of  the  Vice-Presidents  who  have  become  Presi 
dents,  n.  172,  p.  170. 
PRESIDENT  of  the  United  States.    The  President  shall,  at  stated 

times,  receive  for  his  services  a  compensation,  which  shall 

neither  be  increased  nor  diminished  during  the  period  for 

which  he  shall  have  been  elected,  and  he  shall  not  receive 

within  that  period  any  other  emolument  from  the  United 

States,  or  any  of  them 216        84,170 

The  amount,  of  salary,  n.  178. 

PHESIDENT  of  the  United  States.  Before  he  enter  on  the  exe 
cution  of  his  office,  he  shall  take  the  following  oath  or  af 
firmation  : — "I  do  solemnly  swear  (or  affirm)  that  I  will 

faithfully  execute  the  office  of   President  of  the  United  * 

Slates,  and  will,  to  the  best  of  my  ability,  preserve,  pro 
tect,  and  defend  the  Constitution  of  the  United  States."..       217        85,170 
The  only  officer  required  to  take  this  oath;    what  it 

embraces,  n.  174, 
PUESIDKN  r  of  the  United  States.    The  President  shall  be  com- 

m.inder-in-chief  of   the   army  and   navy  of  the    United 

Stall's,  and  of  the    militia  of  the  several   States    when 

called  into  the  actual  service  of  the  United  States;  he  may 

require  the  opinion,  in  writing,  of  the  principal  officer  in 

each  of  the  executive  departments,  upon  any  subject  re- 

laiinir  to  the  duties  of  their  respective  offices;   and  ho 

phall   have   power  to  grant    reprieves  and   pardons  for 

offenses  against  the  United  States,  except  in  cases  of  im 
peachment 2        2        1        35,171 

Need  not  command  in  person.    Extent  of  his  powers, 

n.175.     The  practice  as  to  opinions.     Respecting  depart 
ments,  n.  176.    "Reprieves"  defined,  n.  177.    "Pardons" 

defined  and  discussed.    (See  Pardon,  n.  77.) 
PRESIDENT  of  the  United  States.     He   shall  have  power,  by  and 

with    the   advice   and   consent   of    the    Senate,    to    mnko 

treaties,  provided  two-thirds  of  the    senators  present  con- 

cur;  and  he  .shall  nominate,  and,  hy  and  with  the  advico 

and  consent   of    the    Senate,  shrill  'appoint   ambassadors. 

other  public  ministers,  and  consuls,  judges  of  the  Supreme 

Court,  iind  all  other  officers  of  the  United  States,  whose 

appointments  are  not  herein  otherwise  provided   for,  and 

which  shall  be  established  by  law  ;  but  the  Congress  may 

by  law  vest  the  appointment  of  such  inferior  officers,  aa 


INDEX. 


371 


Art.     sec,    cl.        pp. 

they  think  proper,  in  the  President  alone,  in  the  courts  of 

law",  or  in  the  heads  of  departments 222        85,174 

This  advice,  how  given,  n.  178.     "  Treaties  "  defined,  Id. 

p.   175.     "Nominate"    and    "appoint"   defined,   n.    179. 

"Ambassadors,"   defined,  notes  180,   181.     The   effect  of 

these  laws,  n.  182.  Power  of  removal,  n.  184.  The  tenure  of 

office  bill,  n.  184,  p.  179.    (See  Civil  Office.} 
PRESIDENT  of  the  United  States.     The  President  shall  have  power 

to  fill  up  all  vacancies  that  may  happen  during  the  recess 

of   the    Senate,   by    granting    commissions   which    shall 

expire  at  the  end  of  their  next  session 2        2 

This  power  defined  and  discussed,  notes  185,  186. 
PRESIDENT  of  the  United  States.    He  shall,  from  time   to  time 

give  to  the  Congress  information  of  the  state  of  the  Union^ 

and  recommend  to  their  consideration  such  measures  as 

he  shall  judge  necessary  and  expedient;  he  may,  on  extra 
ordinary  occasions,  convene  both  houses,  or  either  of 

them,  and,  in  case  of  disagreement  between  them,  with 

respect  to  the  time  of  adjournment,  he  may  adjourn  them 

to  such  time  as  he  shall  think  proper;   he  shall  receive 

ambassadors  and  other  public  ministers ;   he  shall   take 

care  that  the  laws  be  faithfully  executed,  and  shall  com 
mission  all  the  officers  of  the  United  States 2  2 

Mode  of   giving    information,  n.  187.      Extra  sessions, 

n.  i88.     Extent  of   the   power  to  take  care,  n.  189.     The 

power  to  commission,  n.  190. 
PRESIDENT  of  the  United  States.     The  President,  Vice-President, 

and  all  civil  officers  of  the  United  States,  shall  be  removed 

from  office  on  impeachment  for,  ar.d  conviction  of,  treason, 

bribery,  or  other  high  crimes  and  misdemeanors , .      2        4 

History  of   the   effort  to  impeach  President  Johnson, 

n.  194.     Cannot  be  impeached  for  political  offenses  merely, 

n.  194,  pp.  187-189.  President  to  assign  district  commanders 

in  the  rebel  States,  n.  286,  p.  282.  §  2.  No  execution  with 
out  the  approval  of,  Id.  §  3.  Law  passed  over  the  Presi 
dent's  veto,  p.  283.  Copies  of  Constitutions  to  be  sent  to 

the  President,  p.  285,  §  5. 
PRESS.     Congress  shall  make   no  law  abridging  the  freedom   of 

speech  and  of  the  press.     Amendments 1 

Freedom  defined,  n.  246.     Extent  of  the  freedom  of  the 

press,  n.  247. 

PIJET  ENDED  authority.     Test  oath  in  regard  to  it,  n.  242,  p.  251. 
PRINCE.     No  person  holding  any  office  of  profit  or  trust  under  the 

United  States,  shall,  without  the  consent  of  the  Congress, 

accept  of  any  present,  emolument,  office,  or  title,  of  any 

kind  whatever,  from  any  king,  prince,  or  foreign  State...        198        81,152 
"OHice"    defined,   n.   151.      The    inhibition  does    not 

extend  to  private  citi'zens,  n.  151,  p.  153. 
PRINCIPAL  officer.     The   President  may  require  the  opinion,  in. 

writing,  of  the  principal  officer  in  each  of  the  executive 

departments 2        2 

These  principal  officers  are  now  the  Secretaries  of  State, 

War,  Navy,  Interior,   Treasury,  the  Postmaster-General, 

and  Attorney-General,  n.  176. 
PRIVATE  property.     Nor  shall  private  property  be  taken  for  public 

use,  without  just  compensation.    Amendments 5 

Private    property    defined.      It   includes    all    private 

property.      It  limits   the  general    government,   not  the 

States.     It  is  a  great  principle  of  universal  application. 

Public  use  defined,  n.  258.    The  compensation  must  not  be 

doubtful,   n.  59.      The    questions   how   considered.      The 

actual  occupjint  of  the  public  lands  is  entitled  to  compen 
sation,  n.  59.  Any  destruction  of  property  is  included,  n.  259. 
PRIVILEGE  of  the  writ  of  habeas  corpus  shall  not  be  suspended, 

unless  when,  in  cases  of  rebellion  or  invasion,  the  public 

safety  may  require  it 1        9        2        80,140 

"  Privilege  "  critically  defined,  notes  140,  220.     It  is  the 

right  to  ask  for  the  writ,  not  to  grant  it,  n.  140. 


86,183 


86,185 


43,254 


85,171 


44,258 


372 


INDEX. 


PRIVILEGED  order  would  destroy  our  form  of  government,  n.  150. 

PRIVILEGED.     Senators   and   representatives  shall,   in  all    cases, 
except  treason,  felony,  and  bn-aeh  of  the  peace,  be  privi 
leged  from  arrest  during  their  attendance  at  the  session  of 
tlu'ir  respective  houses,  and  in  going  to  and  returning 
from  the  same  ...................  .  .....................       1 

Privilege  defined  and  discussed,  n.  3.  It  is  the  privilege 
of  the  house  also,  n.  55.  It  extends  not  only  to  arrests, 
but  the  service  of  civil  summons,  n.  5S.  When  it  com 
mences,  n.  69.  To  whom  it  extends,  n.  60.  And  for  how 
long,  n.  57. 

PRIVILEGES  and  immunities.     The  citizens  of  each  State  shall  bo 
entitled  to  all  the  privileges  and  immunities  of  citizens 
in  the  several  States  ...................................        4 

(See  Citizen*,  n.  220.) 

Privileges  and  immunities  defined  and  discussed,  n.  221. 
They  are  in  their  nature  fundamental,  n.  221,  p.  226. 
Copied  from  the  Articles  of  Confederation,  Art.  IV.  p.  10. 
The  extent  of  the  guaranty,  n.  221,  p.  226.  Powers  of 
the  State  over  the  subject,  Id  and  n.  274.  The  exact  ex 
tent  defined,  n.  222.  The  citizen  cannot  carry  repugnant 
laws  into  a  State,  n.  222,  p.  229. 

PROCEEDINGS.     Each  house  may  determine  the  rules  of  its  pro 

ceedings  ...............................................       1 

PROCEEDINGS.    Each  house  shall  keep  a  journal  of  its  proceedings.      1 
The  object  of  the  journal,  n.  50. 

PROCEEDINGS.     Credit,  proof,  and  effect  of  judicial  proceedings  of 

States  ..................................................      4 

Judicial  proceedings  defined,  n.  218.  The  effect  of  judg 
ments.  (See  Judgment,  notes  21S,  219.) 

PBOCESS  of  law.    Nor  shall  any  person  be  deprived  of  life,  liberty, 

or  property,  without  due  process  of  law.     Amendments..       5 

Due  process  of  law  defined,  n.  257.  Copied  from 
Mayna  Charta,  Id.  The  clause  is  a  restraint  upon  every 


sec.    cl. 


department  of  the  government,  n.  257,  p.  261. 

I 

ls 
Amendments 


PROCESS.     In  all  criminal  prosecutions  the  accused  to  have  com 
pulsory   process  for   obtaining   M'itnesses    in   his  favor. 


Compulsory  process  defined,  n.  261. 

PROCLAMATION.  President  Lincoln's,  of  April,  1SG1,  in  regard  to 
the  war  and  blockade,  n.  117.  Suspending  the  writ  of 
iKtbett*  corpus,  n.  141,  p.  143.  Proclaiming  martial  law, 
Id.  Declaring  freedom  to  the  slaves,  n.  274,  p.  278. 
The  effect  of  the  emancipation  proclamation  upon  notea 
given  for  slaves,  Id.  When  it  took  elfoct.  as  to  the  slaves, 
Id.  The  proclamation  of  the  Queen  of  England  acknowl 
edging  the  Confederates  as  belligerents,  n  117.  Of  Presi 
dent  Johnson  as  to  the  stutim  of  the  Southern  States, 
notes  46,  274,  275,  pp.  281,  282.  Of  William  II.  Seward,  on 
the  13th  amendment,  n.  274,  p.  282.  Proclamations  ad 
mitting  new  States,  n.  230,  p.  237. 

PBOFIT.    Judgment,  in  cases  of  impeachment,  shall  not  extend 
farther  than  to  removal  from  office,  and  disqualification  to 
hold  and  enjoy  any  office  of  honor,  trust,  or  profit  under 
the  United  States  .....................................       1 

This  clause  defined,  n.  40. 

PROFIT.     No  person  holding  an  office  of  trust  or  profit  under  the 

United  States,  shall  be  appointed  an  elector  .......  .  ____      2 

PKOUIBITKD  powers.    The  powers   not  delegated  to  the  United 
States  by  the  Constitution,  nor  prohibited  by  it  to  the 
States,  are  reserved  to  the  States  respectively,  or  to  the 
people.     Amendments  .........  ........................     10 

This  prohibition  discussed  and  compared  with  others, 
notes  71,  138,  269,  274. 

PROMOTE  the  general  welfare.    The   Constitution  established  in 

order  to  promote  the  general  welfare,  &c.     Preamble  ..... 

This  object  defined,  n.  11.     Excluded  from  the  Confede 

rate  States  C  >nsutution,  n.  5.    Discussed  oa  a  power,  n.  80. 


pp. 


26,88 


26,87 
38,213 

44,253 
44,263 


25,82 
82,162 

45,  269 
22,68 


IKDEX. 


373 


PROOF.  Congress  may,  by  general  laws,  prescribe  the  manner  in 
which  the  acts,  records,  and  judicial  proceedings  of  States 

shall  be  proved,  and  the  effect  thereof 4 

The  acts  prescribed  upon  the  subject,  n.  219,  pp.  218, 
221,  222.  Judicial  proceedings  proved  by  the  attestation 
of  the  clerk  and  certificate  of  the  judge ;  legislative  acts 
by  the  seal  of  the  State,  n.  219,  p.  218.  The  effect  dis 
cussed,  n.  219.  What  the  judge  must  certify,  n.  219, 
p.  219.  The  validity  and  effect  denned,  n.  219,  p.  220.  lie 
cords  not  judicial,  how  proved,  n.  219,  p.  221,  §  1.  Law 
extended  to  the  territories,  n.  219,  p.  222,  §  2. 

PROPERTY  of  the  United  States.  The  Congress  shall  have  powei 
to  dispose  of  and  make  all  needful  rules  and  regulations 
respectinff  the  territory,  or  other  property  belonging  to 

the  United  States 4 

Territory  means  property,  n.  231,  p.  238.  Subject  dis 
cussed,  Id.  lielated  to  the  territory  then  of  the  United 
States,  n.  231,  p.  239.  The  Confederate  States  Constitu 
tion  on  the  subject,  n.  2=31,  pp.  240,  241,  §  2,  3.  Property 
defined,  n.  232.  Effect  of  the  acquisition  of  territory 
upon  the.  inhabitants,  n.  232. 

PROPERTY  or  effects.  The  right  of  the  people  to  be  secure  in  their 
effects  against  unreasonable  searches  or  seizures  shall  not 
be  violated.  Amendments 4 

PROPERTY.    Nor  shall  any  person  be  deprived  of  life,  liberty,  or 

property,  without'due  process  of  law.    Amendments 5 

(See  Process  of  Law,  n.  257.) 

PROPERTY.     Nor   shall  private  property  be  taken  for  public  use 

without  just  compensation.     Amendments 5 

Private  property  defined,  n.  258.  Uelates  to  all  property  ; 
copied  from  Mayn<i  Chavta,  n.  258.  Public  use  defined,  Id. 
p.  262.  (See  Ju#t  Compensation,  n.  259.) 

PROPOSK  amendments.  The  Congress,  whenever  two-thirds  of 
both  houses  shall  deem  it  necessary,  shall  propose  amend 
ments  to  this  Constitution,  or,  on  the  application  of  the 
legislatures  of  two- thirds  of  the  several  States,  shall  call 

a  convention  for  proposing  amendments,  <fcc 5 

All  the  amendments  have  been  proposed  to  the  legis 
latures,  n.  236. 

PROSECUTED.  The  judicial  power  of  the  United  States  shall  not 
be  construed  to  extend  to  any  suit  in  law  or  equity,  com 
menced  or  prosecuted  against  one  of  the  United  States  by 
citizens  of  another  State,  or  by  citizens  or  subjects  of  any 

foreign  State.     Amendments 11 

The  object  of  this  amendment,  notes.  270,  271,  272. 

PROSECUTIONS.      Criminal   prosecutions    against    persons.      (See 

Criminal.)    Amendments '. , 6 

See  the  subject  discussed,  notes  260-262. 

PROTECT  the  Constitution.  The  President  of  the  United  States 
shall  take  an  oath  or  affirmation  to  preserve,  protect,  and 

defend  the  Constitution 2 

This  constitutes  him  emphatically  the  protector  of  the 
Constitution,  n.  174.  Protect  is  not  in  the  test  oath, 
U.  242,  p.  252. 

PROTECT.  The  United  States  shall  protect  each  State  against  in 
vasion 4 

Invasion  defined,  notes  133,  234. 

PROTECTOR.  The  President  is  the  protector,  guardian,  and  defender 
of  the  Constitution,  n.  174. 

PUOVIDK  for  the  common  defense.  The  Constitution  established 
in  order  to  provide  for  the  common  defense,  «kc.  Pre 
amble  

Common  defense  defined,  n.  10.  Omitted  in  the  Confed 
erate  States  Constitution,  n.  5.  Discussed  as  a  power,  n.  79. 

PUBLIC  acts,  records,  and  judicial  proceedings  of  States,  to  have 

full  faith  and  credit,  &c 4 

Public  acts,  records,  and  judicial  proceedings  defined, 
n.218.  (See  Judgments.) 


Art.    sec.    cl. 


pp. 

33,213 


3        2 


29, 238 


44,257 
44,  253 

44,  25S 


40,  246 

46,269 
44,263 

85,170 


22,53 
83, 213 


374 


Art.    sec.    cl. 

PUBLIC  danger.  No  State  shall,  without  the  consent  of  Congress, 
ensure  in  war,  unless  actually  invaded,  or  in  such  immi 
nent  danger  as  will  not  admit  of  delay .  1  10  8 

See  notes  162-164. 

PUBUC  danger.     (See  War.)    Amendments 5 

PUBLIC  debt  of  the  United  States  from  the  foundation  of  the  gov 
ernment,  n.  78,  pp.  97-100. 

PUBLIC  debt.  The  validity  of  the,  of  the  United  States  author 
ized  by  law,  including  debts  incurred  for  payment  of  pen 
sions  and  bounties  for  services  in  suppressing  insurrection 

or  rebellion,  shail  not  be  questioned.    Amendments 14        4 

This  clause  discussed,  n.  282. 

PUBLIC  ministers.    (See.  Appointments— Ambassadors.') 222 

(See  Ambassadors.  Public  Ministers,  and  Consuls 
denned,  n.  188.) 

PUBLIC  ministers.     The  President  shall  receive  ambassadors  and 

other  public  ministers 2        3 

PUBLIC  money.    (See  Money.) 197 

PUBLIC  safety.  The  privilege  of  the  writ  of  Jiabeas  corpus  shall 
not  be  suspended,  unless  when,  in  cases  of  rebellion  or 

invasion,  the  public  safety  may  require  it 1        9        2 

(See  Habeas  Corpus,  notes  140,  141,  pp.  141-146.)  When 
the  President  need  not  obey  a  writ  of  habeas  corpus, 
n.  165. 

PUBLIC  securities.  All  debts  of  the  United  States  may  be  »o 
called,  n.  84. 

PUBLIC  trust.  No  religious  test  shall  ever  be  required  as  a  quali 
fication  to  any  office  or  public  trust  under  the  United 
Slates 6  3 

PUBLIC  use.    Nor  shall  private  property  be  taken  for  public  use 

without  just  compensation.     Amendments 5 

"Public  use"  defined,  n.  258,  p. -.62.  (See" TV-irate 
Property"  n.  258.)  "Just  Compensation  "  defined.n.  259. 
The  compensation  must  be  in  money — constitutional  cur 
rency,  n.  259. 

PUBLISH.  The  journal  of  each  house  shall  be  published  from 
lime  to  time,  except  such  parts  as  may  in  their  judgment 

require  secrecy 158 

(See  Journal.) 

PUBLISHED.  A  regular  statement  and  account  of  the  receipts  and 
expenditures  of  all  public  money  shall  be  published  from 

time  to  time , 197 

(See  Accounts.) 

PUNISH.     Kach  house  of  Congress  may  punish  its    members  for 

disorderly  behavior 152 

The  power  to  punish  defined  and  discussed,  n.  48.  May 
extend  to  others  besides  members.  Sam  Houston  punished, 
n.  48.  Commanding  generals  to  punish  disturbers  of  the 
peace  and  public  criminals,  n.  276,  p.  282,  §  4. 

PUNISIIMKNT.  Persons  convicted  on  an  impeachment  shall,  never 
theless,  be  liable  and  subject  to  indictment,  trial,  judg 
ment,  arid  punishment,  according  to  law 137 

PUNISHMENT.  Congress  shall  have  power  to  provide  for  the  pun 
ishment  of  counterfeiting  the  securities  and  current  coin 

of  the  United  States 1         8        6 

Counterfeiting  defined,  n.  103.  Claimed  as  an  exclusive 
power  in  Congress,  n.  103. 

PirNisiiMKNT.  The  Congress  shall  have  power  to  declare  the  pun 
ishment  of  treason 332 

The  acts  of  Congress  upon  the  subject,  n.  217. 

PUNISHMENT*.  Excessive  bail  shall  not  be  required,  nor  excessive 
fines  imposed,  nor  cruel  and  unusual  punishments  inflicted. 

Amendments 8 

DislVanchisement  is  not  a  cruel  punishment,  n.  266;  nor 
fine  and  imprisonment  fora  misdemeanor,  Id.  Cruel  and 
umiMi.-il  not  t<»  be  inflicted  under  the  reconstruction  laws, 
n.  276,  p.  '282,  §  4.  Sentence  of  death  not  to  be  inflicted 
without  tho  approval  of  the  President,  Id. 


pp. 

82,  161 

44,  253 


40,  280 
85,  174 


86,153 
81, 152 


80, 140 


41,250 
44,  253 


26,87 

81,151 

26,86 

25,  82 
29,118 

88,  213 

45, 267 


INDEX. 


375 


Art.  sec.    cl.          pp. 

QjAf-iFiCATroNs  of  a  representative  In  Congress  shall  be  25  years 
of  age,  seven  years  a  citizen  of  the  United  States,  and 

when  elected  an  inhabitant  of  the  State  he  represents 1        2        2          23,  66 

States  cannot  superadd  qualifications,  u.  19.  Precedents 
in  regard  to  them,  Id. 

QUALIFICATIONS  of  a  senator  in  Congress  shall  be  30  years  of  age, 
nine  years  a  citizen  of  the  United  States,  and  when  elected 

an  inhabitant  of  the  State  he  represents 188          24,77 

QUALIFICATIONS  to  office.  The  senators  and  representatives  be 
fore  mentioned,  and  the  members  of  the  several  State 
legislatures,  and  all  executive  and  judicial  officers,  both  of 
the  United  States  and  of  the  several  States,  shall  be  bound 
by  oath  or  affirmation  to  support  this  Constitution  ;  but 
no  religious  test  shall  ever  be  required  as  a  qualification  to 

any  office  or  public  trust  under  the  United  States 6  8        40.  250 

See  notes  242,  245. 
QUALIFICATIONS  of  delegates  in  the  reconstruction   conventions, 

n.  276,  p.  2S3,  §  5. 

QUALIFICATIONS  for  electors  of  representatives  in  Congress  the 
same  as  for  electors  of  the  most  numerous  branch  of  the 

State,  legislature. 121          22,56 

QUALIFICATIONS  of  its  own  members.  Each  house  of  Congress 
shall  be  the  judge  of  the  elections,  returns,  and  qualifi 
cations  of  its  own  members 1  5  1  25,84 

Qualifications  of  senators  and  representatives  discussed 
and  criticised,  n.  46.  The  issues  between  the  President 
and  Congress,  upon  the  subject,  n.  46.  Of  voters  defined, 
n.  16,  p.  59.  In  every  State  of  the  Union  alphabetically 
arranged  n.  17,  pp.  60-65.  Citizenship  not  necessary,  n.  18, 
p.  65.  Of  voters  on  the  reconstruction  laws,  n.  276,  p.  233, 
§  5.  Supplementary  act,  p.  287,  §  6. 

QUALIFICATIONS  of  President  United  States.  No  person  except  a 
natural  born  citizen,  or  a  citizen  of  the  United  States  at 
the  time  of  the  adoption  of  this  Constitution,  shall  be  eli 
gible  to  the  office  of  President;  neither  shall  any  person 
be  eligible  to  that  office  who  shall  not,  have  attained  to  the 
a</e  of  35  vears,  and  been  fourteen  years  a  reside'nt  within 

the  United  States 214        34,167 

(See  President,   n.  109.) 
QUALIFI  .ATIONS  of  Vice-President  the  same  as  that  of  President 

of  the  United  States.    Amendments 12  3        47,166 

v^oAKTEKiu).  No  soldier  shall,  in  time  of  peace,  be  quartered  in 
any  house  without  the  consent  of  the  owner ;  nor  in  time 
of  war,  but  in  a  manner  to  be  prescribed  by  law.  Amend 
ments 3  44,256 

Quartered  defined,  n.  250,  p.  257.     The  owner  defined, 
Id.     The  Declaration  of  Independence  upon,  p.  4. 
QUESTION.     The  yeas  and  nays  of  the  members  of  either  house 
on  any  question  shall,  at  the  desire  of  one-fifth  of  those 

present,  be  entered  on  the  journal 1        5        3          26.87 

QUESTION.     On  the  question  of  adjournment  of  the  two  houses,  the 

approbation  of  the  President  is  not  necessary 1        7        3          23,  93 

QUESTIONED.     For  any   speech  or  debate   in   either  house,  they 

shall  not  be  questioned  in  any  other  place 1        6        1          26,83 

Transferred  from  Articles  of  Confederation,  Art.V.  p.  11. 
QUESTION EP.      The  validity  of   the   public  debt  of   the    United 

States,  &c..  &c.,  shall  not  be  questioned.     Amendments...     14        4  49/280 

(See  l>abl/ic  Debt.) 

QUORUM.  A  majority  of  each  house  shall  constitute  a  quorum  to 
do  business,  but  a  smaller  number  may  adjourn  from  day 
to  day,  and  may  be  authorized  to  c  >mpel  the  attendance  of 
ab.senc  members,  in  such  manner,  and  under  such  penal 
ties  as  each  house  may  providf  1  5  I  25,84 

QtroRCM  of  the  House  of  Representatives.  A  quorum  (for  the 
election  of  President  by  the  House  of  Representatives) 
shall  consist  of  a  member  or  members  from  two  thirds  of 
the  States,  and  it  majority  of  all  the  States  shall  be  neces 
sary  to  a  choice.  Amendments 12  1  46,164 


376 


INDEX. 


QrronxTM  of  the  Senate.  A  quorum  (for  the  election  of  Vice- 
President  by  the  Senate)  shall  consist  of  two-thirds  of 
the  whole  number  of  senators,  and  a  majority  of  the 
whole  number  shall  be  necessary  to  a  choice.  Amend 
ments  .................................................. 

HATIFICATIOX.     The  ratifications  of  the  conventions  of  nine  States 
shall  be  sufficient  for  the  establishment  of  this  Constitu 
tion  between  the  States  so  ratifying  the  same  ........... 

Katification  defined,  u.  242.     The  dates  by  the  respect 

ive   States,   n.   252,  p.  253.     Of  the   Constitutions  of  the 

rebel  States  by  a  majority  of  registered   voters,   n.   276, 

p.  2S5. 

READ,  GECKGE,  of  Eandolph,  Delaware.    Signed  the  Declaration 

of  Independence,  p.  7. 

RKIJEL  STATES.  The  grounds  of  excluding  their  delegations  from 
Congress,  n.  46.  Act  to  provide  for  the  government  of, 
n.  276,  p.  2S2  (Caption).  Divided  into  military  districts, 
Id.  §2.  When  the  people  of,  shall  have  formed  constitu 
tions,  n.  274,  p.  283,  §  5.  The  governments  of,  deemed  pro 
visional,  Id.  §  6.  Supplementary  act  in  relation  to,  n.  274, 
p.  283.  Explanatory  section,  Id.  §  1.  Registration  of 
voters  in,  Id.  All  elections  in,  to  be  by  ballot,  p.  286, 
§  1.  lielative  to  the  rebel  States,  n.  284,  p.  286,  Preamble. 
Their  governments  were  subject  to  military  authority, 
n.  284,  p.  286,  §  1.  Power  to  remove  officers  of  their  govern 
ments,  Id.  §  2,  p.  287.  §  3,  4,  p.  288,  §  8.  Duties  of  the 
boards  of  registration  in  the,  explained,  n.  287.  §  5.  The 
disqualification  as  to  voters  in,  explained,  Id.  §  6.  All  the 
acta  interpreted  liberally,  Id.  §  11.  Appropriations  for, 
p.  288.  The  objects  of  the  acts  explained,  notes  277-285. 

The  stoats  of  their  inhabitants  during  the  rebellion,  notes 
46,  117,  118.  Their  Confederacy  was  not  a  de  facto  govern 
ment,  notes  211,  212,215.  The  examples  in  history,  n.  235. 
Virginia,  North  Carolina,  South  Carolina,  Georgia,  Mis 
sissippi,  Alabama,  Louisiana,  Florida,  Texas,  and  Arkan 
sas,  declared  to  be  rebel  States,  n.  276,  pp.  282,  286. 
Divided  into  military  districts,  n.  276,  p.  282,  §  1. 
The  President  to  assign  commanders  to  the  districts, 
Id.  3.  The  duty  of  the  commanders  to  protect  persons 
and  property,  to  suppress  insurrections,  &c.,  Id.  §  3. 
Persons  under  military  arrest  to  be  tried  without 
delay,  Id.  §  4.  How  the  people  are  to  frame  and  ratify 
their  Constitutions,  Id.  p.  283,  §  5.  To  ratify  the  four 
teenth  constitutional  amendment,  Id.  The  exclusion 
from  the  polls  and  from  office,  Id.  §  5,  6.  The  govern 
ments  all,  declared  provisional,  Id.  §  6.  The  first  supple 
mentary  act  in  regard  to  the  rebel  States,  n.  276.  p.  283, 
§  1.  The  oath  of  the  voters,  Id.  p.  284.  Whtn  and  by  whosw 
orders  the  elections  to  be  held,  Id.  §  2.  To  vote  for  or 
against  a  convention,  Id.  §  3.  The  boards  of  registration 
appointed  and  subsequent  action,  n.  276,  p.  285,  §  4.  What 
vote  requisite  to  the  ratification  of  the  Constitution,  Id. 
§  5.  Expenses,  how  paid,  p.  276,  §  7,  8.  "  Article"  con 
strued  to  mean  section,  Id.  §  9.  Second  supplementary 
act  in  regard  to  the  rebel  States,  n.  276,  p.  2^6.  Explana 
tory  as  to  the  legality  of  their  governments,  Id.  §  1.  The 
power  of  the  commanders  to  remove  or  suspend  from 
office,  Id.  §  2.  The  general  of  the  armies  invested  with 
full  power,  n.  276,  p.  287,  §  3.  Confirmation  and  further 
powers  of  removal,  Id.  §  4.  Powers  of  the  boards  of 
registration  in  ascertaining  qualifications,  p.  287,  §5.  Ex 
planatory  as  to  disqualifications.  Id.  §  6.  Time  for  regis 
tration  extended,  p.  2S8,  §  7.  The  commanding  general 
may  change  the  boards.  Id.  §  8.  Oath  of  the  boards,  §  9. 
Not  bound  by  the  opinions  of  civil  officers,  Id.  §  10.  The 
acts  to  be  construed  liberally.  Id.  §  11.  Appropriations  for 
expenses,  n.  270,  p.  288,  §  1.  The  registered  voters  under 


Art.     sec.    cJ. 


1-2 


14 


PP. 


47, 1C6 


41,  252 


192       30,140 


49,  230 


48,  280 


81, 151 


2        3        86, 182 


INDEX.  377 

Art.  sec.    cl.  pp. 

those  acts.  n.  278.  Compared  with  the  vote  of  1860,  Id. 
The  action  of  the  conventions,  Id.  p.  29.  (See  Rebellion, 
Reconstruction.') 

RKKELLION.  The  effects  of,  upon  the  States  and  the  people. 
Pref.  p.  xiii.  How  it  affects  the  qualifications  of  senators 
and  members  of  Congress,  n.  46.  Dnring  the,  it  was  a 
state  of  war,  n.  117.  Is  a  civil  war,  Id,  The  cotton  cap 
tured  during  the,  was  lawful  prize,  n.  118,  p.  129.  The 
army  at  the  close  of,  was  one  million  of  men,  n.  124. 
Synonymous  with  insurrection,  n.  132,  p.  135.  The  militia 
called  forth  to  suppress  it,  n.  135.  The  effects  of  the 
President's  pardon  of,  n.  174,  p.  174  History  of  some  of 
the  States  in  regard  to,  n.  255.  Eesults  of,  as  to  slavery 
and  reconstruction,  notes  274-286. 

REBELLION.  The  privilege  of  the  writ  of  habeas  corpits  shall  not 
be  suspended,  unless  when,  in  cases  of  rebellion  or 

invasion,  the  public  safety  may  require  it •.... 

(See  Privilege,  n.  140 ;  Habeas  Corpus,  n.  141.)  Sus 
pended  during  the  rebellion  of  the  Southern  States, 
n.  141,  p.  143,  §  1.  The  Proclamation  suspending,  n.  141, 
pp.  143, 144.  (See  Writ,  notes  140,  141.) 

REBELLION.  The  debts  incurred  for  payment  of  pensions  and 
bounties  for  services  in  suppressing  insurrection  or  rebel 
lion,  shall  not  be  questioned 

But  neither  the  United  States  nor  any  State  shall  assume 
or  pay  any  debt  or  obligation  incurred  in  aid  of  insurrec 
tion  or  rebellion . . .' '- .  

Remarks  upon  this  section,  a.  2S2.  The  amount  of  the 
Confederate  debt,  n.  282.  Oath  that  ho  has  not  been  dis 
franchised  for  participation  in  any  rebellion,  n.  276,  p.  '284. 
"When  the  right  to  vote  is  denied  except  for  participation 
in  the  rebellion.  Art.  XIV.  §  2,  note  thereon,  n.  281. 

REBELS.    The  effect  of  the  President's  pardon  of,  n.  174,  p.  174. 

RECEIPTS  and  expenditures.  A  regular  statement  and  account  of 
the  receipts  and  expenditures  of  all  public  money  shall  bo 
published  from  time  to  time 

RECESS  of  the  Senate.  The  President  shall  have  power  to  fill  up 
all  vacancies  that  may  happen  during  the  recess  of  the 
Senate,  by  granting  commissions,  which  shall  expire  at  the 

end  of  their  next  session 

This  power  controlled  by  the  tenure  of  office  law,  n.  284, 
p.  ISO,  §  5.  The  Constitution  explained,  n.  185. 

RECOMMEND  to  Congress.  The  President  shall  from  time  to  time 
recommend  to  the  consideration  of  Congress  such  mea 
sures  as  he  shall  judge  necessary  and  expedient 231  86,183 

RECONSIDERED.  Bills  returned  with  objections  by  the  President 
of  the  United  States  to  be  reconsidered  by  the  two 
houses  of  Congress,  and  if  approved  by  two-thirds  of 
both  houses,  shall  become  a  law 1  7  2  27.  91 

RECONSIDERED.  Any  order,  resolution,  or  vote,  returned  with  ob 
jections  by  the  President,  may  be  reconsidered,  and  re- 
passed  by  two-thirds  of  both  houses 1  7  3  28,93 

RECONSTRUCTION.  The  effect  of  the  acts  upon  the  independent 
power  of  the  houses,  n.  46.  The  President's  vetoes  of 
what  are  called  the  reconstruction  acts,  n.  67.  The  efforts 
to  impeach  the  President  for  his  course  in  regard  to,  n.  194. 
Summary  as  to  that  course,  n.  94.  His  intimation  as  to 
his  right  to  resist,  n.  239.  The  several  acts  commonly 
called  the  reconstruction  laws,  n.  276.  The  failure  of 
the  court  to  take  jurisdiction  of  the  subject,  n.  276. 
p.  231.  The  terms  imposed  by  President  Johnson  as  con 
ditions  of,  n.  276,  p.  281.  The  purpose  to  establish  loyal 
and  State  governments,  n.  276,  p.  2S2.  The  terms  of  res 
toration,  n.  276,  p.  283,  §  5.  Until  then  they  are  pro 
visional  governments,  Id.  §  6.  Mode  of  registration  and 
practice,  Id.  p.  284.  §  1-9.  The  local  governments  placed 
subject  to  the  military  commanders,  n.  276,  p.  2S6.  The 
President's  opposition  to  those  laws,  n.  2b4  (See  Rebel 
State*,  n.  276.J 


378 


INDEX. 


RECORDS.  Full  faith  and  credit  shall  be  given  in  each  State  to  the 
public  acts,  records,  and  judicial  proceedings,  of  every 
other  State  ;  and  the  Congress  may,  by  general  laws,  pre 
scribe  the  manner  in  which  such  acts,  records,  and  pro 
ceedings,  shall  be  proved,  and  the  effect  thereof 4 

Records  defined,  n.  218,  p.  213.  Act  of  Congress  for 
proving  judicial  records,  n.  219,  §  1.  For  proving  records 
not  judicial,  n.  219.  p.  221,  §  1.  Civil  law  deeds,  how 
proved,  Id.  The  act  extended  to  the  Territories,  n  219 
p.  222.  §  2. 

REDRESS  of  grievances.  Congress  shall  make  no  law  abridging 
the  right  of  the  people  peaceably  to  assemble,  and  to 
petition  the  government  for  a  redress  of  grievances. 

Amendments 1 

(See  Grievances.) 
REED,  JOSEPH,  of  Pennsylvania.     Signed  Articles  of  Confederation, 

p.  21. 
REGULA-IK     To  coin  money  and  regulate  the  value  thereof,  and  of 

foreign  coin        

See  a  history  of  the  regulations,  u.  99.  To  fix  is  to 
regulate,  n.  100. 

REGULATION.  No  person  held  to  service  or  labor,  escaping  into 
another  State,  shall,  in  consequence  of  any  law  or  regu 
lation  of  such  State,  be  discharged  from  such  service  or 

labor 

(See  Fugitives,  &c.,  notes  228-228.) 

REGULATIONS.     If  a  prisoner  be  held  by  any,  habeas  corpus  sus 
pended  as  to,  n.  141.  p.  143. 
REGULATIONS    for  the   election  of  senators  and   representatives. 

(See  Senators. ) 

REGULATIONS.  The  Supreme  Court  shall  have  appellate  jurisdic 
tion  in  certain  cases,  both  as  to  law  and  fact,  with  such 
exceptions,  and  under  such  regu'ations  as  the  Congress 

shall  make j 

REGULATIONS  The  Consrress  shall  have  power  to  dispose  of,  and 
make,  all  needful  rules  and  regulations  respecting  the  ter 
ritory  and  other  property  belonging  to  the  United  States.  < 

Regulations  of  the  post-office  department,  n.  106. 
RELIGION.     Congress  shall  make  no  law  respecting  an  establish 
ment  of  religion,  or  prohibiting  the  free  exercise  thereof. 

Amendments ] 

Keliirion  defined,  n.  245.  The  object,  Id.  No  restraint 
on  the  States,  n.  245,  p.  255.  All  sects  tolerated,  Id.-  The 
Christian,  is  not  a  part  of  the  common  law,  Id. 
RELIGION.  Against  all  force  or  attacks  made  against  the  States  on 
account  of  religion,  sovereignty,  trade,  or  any  other  pre 
tence,  Confed.  Art.  III.  p.  9. 

RELIGIOUS  test.  No  religious  test  shall  ever  be  required  as  a 
qualification  to  any  office  or  public  trust  under  the  United 

States '."i 

In  the  sense  of,  25  Stat.  Charles  II.  n.  242, "p." 251 " ' 
REMEDY.     Laws  which  only  affect  the,  do  not  impair  contracts, 
n.  Ifil.     Jiut  the  validity  and  remedy  may  be  inseparable, 
n.  157  p.  156. 

REMOVAL.  The  commanding  generals  of  military  districts  may 
remove  State  officers  in  the  rebel  States,  n.  276,  p.  280, 
§  2.  The  commanding  general  may  remove  when,  Id.  p.  287, 
§  3.  Removals  approved  and  authorized,  Id.  §  4. 
REMOVAL.  Judgment,  in  cases  of  impeachment,  shall  not  extend 
further  than  to  removal  from  office,  and  disqualification  to 
h->i<l  and  enjoy  nny  office  of  honor,  trust,  or  profit,  under 

the  United  Statei   1 

Doubtful  if  it  can  be  less,  n.  40.    Touches  neither  per 
son  nor  property,  n.  4i». 
REMOVAL.     In  case  of  the  removal  of  the  President  from  office,  it 

shall  devolve  on  the  Vice-President 2 

On  what  Vice-presidents  the  office  has  devolved,  n.  172, 
p.  170. 


Art  sec,    cl. 


pp. 


18 


1        38,213 


43,254 


29,114 


423  39,232 

141  22, 5G 

322  87,209 

t        3        2  39,238 

I  43,254 


8        40,250 


25,52 
84,169 


INDEX. 


379 


REMOVAL.    In  case  of  removal,  both  of  the  President  and  Vice- 
President,  the  Congress   may  by  law  provide,  declaring 
what  officer  shall  then  act  as  President  ................. 

The  act  of  Congress  providing  for  the  case,  n.  172,  §  8,  9. 

REMOVED  from  office.     All  civil  officers  of  the  United  States  shall 
be  removed  from  office  on  impeachment  for,  and  convic 
tion  of,  treason,  bribery,  or  other  high  crimes  and  misde 
meanors  ................................................ 

(See   Civil  Officer*,  n.  191  ;  Crimes—  Misdemeanors— 
Impeachment,  notes  192-194.) 

REPRESENTATION.     When  vacancies  happen  in  the  representation 
from  any  State,  the  executive  thereof  shall  issue  writs  of 
election'to  fill  them  ............         .................... 

Full  note  upon  this  subject,  n.  25. 

REPRESENTATION.  When  the  rebel  States  shall  be  entitled  to, 
n.  276,  p.  282,  §  5.  Until  so  entitled  all  civil  governments 
to  be  considered  provisional,  Id.  §  6.  (See  Rebel  States.) 

REPRESENTATION.     But  when  the  right  to  vote  shall  he  denied  to 
any  class,  &c.,  the  basis  of  representation  shall  be  reduced 
in  proportion,  &c  ........................................ 

Note  upon  this  section,  n.  281. 

REPRESENTATIVE.    No  person   shall  be  a  representative   unless 
25  years  old,  been  seven  years   a  citizen  of  the  United 
States,  and,  when  elected,  an  inhabitant  of  the  same  State. 
(See  'Qualifications,  n.  46.) 

REPRESENTATIVE  numbers  include  all  free  persons,  those  bound  to 
service  for  a  term  of  years,  Indians  taxed,  and  three-fifths 
of  all  other  persons  (slaves),  all  to  be  enumerated  every 
ten  years,  &c  ........................................... 

(See  Amendments,  Art.  14,  §  2.  p.  279.) 

REPRESENTATIVE.       No  senator  or  —  shall,   during  the   time  for 
which  he  was  elected,  be  appointed  to  any  civil  office 
under  the  authority  of  the   United  States,  which  shall 
have  been  created,  or  the  emoluments  whereof  shall  have 
been  increased  during  such  time:  and  no  person  holding 
any  office  under  the  United  States  shall  be  a  member  of 
either  house   during  his  continuance  in  office  ............ 

(See  Office.}  •'•  •"••••'• 

REPP.ESENTATIVE.  No  representative  shall  be  appointed  an  elec 
tor  of  President  or  Vice-President  of  the  United  States.  . 

REPRESENTATIVES.      No    person    shall   be    a   senator  or    repre 
sentative  in  Congress,  or  elector  of  President  and  Vice- 
President,   or    hold  any  office,  civil  or  military,   under 
the  United    States,   or    under    any   State,   who,    having 
previously  taken  an  oath,  as  a  member  of  Congress,  or  as 
any  officer  of  the  United  States,  or  as  a  member  of  any 
State,  legislature,  or  as  an  executive  or  judicial  officer  of 
any   State,   to   support  the   Constitution  of  the   United 
States,  shall   have   engaged  in  insurrection   or  rebellion 
against  the  same,  or  given  aid  or  comfort  to  the  enemies 
thereof.     But  Congress  mav,  by  a  vote  of  two-thirds  of 
each  house,  remove  such  disability  ...................... 

Comments  upon  this  section,  notes  276,  281. 

REPRESENTATIVES.  Congress  shall  consist  of  a  Senate  and  House 
of  representatives  ...................................... 

REPRESENTATIVES.  Members  of  the  House  of  Representatives  to 
be  chosen  every  second  year  by  the  people  ............... 

REPRESENTATIVES  in  Congress.  Qualifications  of  electors  of 
representatives  in  Congress  the  same  as  for  electors  of 
the  most  numerous  branch  of  the  State  legislature.  ---- 

REPRESENTATIVES  and  direct  taxes  to  be  apportioned  among  the 
States  according  to  theit  respective  numbers  ............. 

REPRESENTATIVES  shall  not  exceed  one  lor  every  80,000,  but  each 
State  shall  have  at  least  one  representative  .............. 

REPRESENTATIVES  allowed  in  first  Congress  for  each  of  the  thir 
teen  States  ............................................. 

For  each  of  the  thirty-three  States,  by  the  census  of  1860, 
n.  24,  pp.  68,  69. 


Art. 


sec.  cL 
1   5 


14 


pp. 
34, 1G9 

36, 153 


22 


28 


62 
1        2 


48,279 
23,66 

23,67 


27,90 
32,164 


1 

2   1 


2   3 


279 

22,56 
22, 56 

22,56 
23,67 
23,67 
23,67 


380 


INDEX. 


Art.    sec.    el.         pp. 

REPRESENTATIVES.     The  House  of  Representatives  shall  choose 

their  Speaker  and  other  officers 125          23,72 

REPRESENTATIVES.    The  House  of  Representatives  shall  have  the 

sole  power  of  impeachment 1        2        C          23, 72 

REPRESENTATIVES.  The  times,  places,  and  manner  of  holding 
elections  for  senators  and  representatives  shall  be  pre 
scribed  in  each  State  by  the  legislature  thereof;  but  the 
Congress  may,  at  any  time,  by  law.  make  or  alter  such 
regulations,  except  as  to  the  places  of  choosing  senators..  1  4  1  25,83 

REPRESENTATIVES.    The  House  of — 

Shall  be  the  judge  of  the  elections,  returns,  and  qualifi 
cations  of  its  own  members 1  5  1  25,84 

A  majority  thereof  shall  constitute  a  quorum  to  do 
business  ;  but  a  smaller  number  may  adjourn  from  day  to 
day,  and  may  be  authorized  to  compel  the  attendance  of 
absent  members,  in  such  manner,  and  under  such  penal 
ties,  as  that  house  may  provide 1  5  1  25,  84 

May  determine  the  rules  of  its  proceedings,  punish  its 
members  for  disorderly  behavior,  and,  with  the  concur 
rence  of  two-thirds,  expel  a  member 1  5  2  26, 86 

Shall  keep  a  journal  of  its  proceedings,  and  from  time 
to  time  publish  the  same,  excepting  such  parts  as  may,  in 
their  judgment,  require  secrecy  ;  and  the  yeas  and  nays  of 
the  members  on  any  question  shall,  at  the  desire  of  one- 
fifth  of  those  present,  be  entered  on  the  journal 1  5  8  26, 78 

Shall  not,  during  the  session  of  Congress,  without  the 
consent  of  the  Senate,  adjourn  for  more  than  three  days, 
nor  to  any  other  place  than  that  in  which  the  two  houses 
shall  be  sitting 154  26,88 

REPRESENTATIVES.    The  Senators  and — 

Shall  receive  a  compensation  for  their  services,  to  be 
ascertained  by  law,  and  paid  out  of  the  Treasury  of  the 

United  States 1        (5        1          26, 88 

They  shall,  in  all  cases  except  treason,  felony,  and 
breach  of  the  peace,  be  privileged  from  arrest  during 
their  attendance  at  the  session  of  their  respective  houses, 
and  in  going  to  and  returning  from  the  same ;  and  for  any 
upeech  or  debate  in  either  house,  they  shall  not  be  ques 
tioned  in  any  other  place 1  6  1  26,88 

REPRESENTATIVES.  All  bills  for  raising  revenue  shall  originate  in 
the  House  of  Representatives ;  but  the  Senate  may  pro 
pose,  or  concur  with,  amendments,  as  on  other  bills 1  7  1  27, 90 

REPRESENTATIVES.  Every  bill,  order,  resolution,  or  vote  (except 
on  a  question  of  adjournment),  originating  in  either  house 
of  Congress,  shall  be  presented  to  the  President  of  the 
United  States.  (For  proceedings  see  Bill— Resolution^..  1  7  2&3  27,91 

REPRESENTATIVES  in  Congress,  and  members  of  State  legislatures, 
shall  be  bound  by  oath  or  affirmation,  to  support  this 
Constitution 6  3  40,250 

REPRIEVES.    The  President  shall  have  power  to  grant  reprieves..       221        85,171 
Reprieves  defined,  n.  177. 

REPRISAL.    Congress  shall  have  power  to  grant  letters  of  marque 

and  reprisal 1        8      11        29,127 

Reprisal  dejined  and  discussed,  n.  121.  This  power 
was  in  Congress  under  the  Confederation,  Art.  IX.  p.  14. 

REPRISAL.    No  State  shall  grant  letters  of  marque  and  reprisal. ..       110        1        SI,  153 
Because  this  is  a  national  power,  n.  152. 

REPUBLICAN.     The  United  States  shall  guarantee  to  every  State  in 

this  Union,  a  republican  form  of  government 441        39,242 

Republican  defined,  n.  233,  p.  243.  A  government  of 
the  people,  Id. 

REPUBLICAN  governments  in  the  rebel  States.  To  enable  the  rebel 
States  to  establish  republican  governments,  n.  256,  p.  282, 
preamble.  Inquiry  as  to  whether  Maryland  has,  n.  46.  (See 
Rebel  States.) 

RESERVED  rights.    (See  Retained  Rights.)    Amendments 9  45,268 

RESERVED  powers.  The  powers  not  delegated  to  the  United 
States  by  the  Constitution,  nor  prohibited  by  it  to  the 


INDEX. 


381 


States,  are  reserved  to  the  States,  respectively,  or  to  tho 

people.     Amendments 

The  powers  not  delegated  are  retained,  notes  89,  269, 
p.  107. 

RESERVING  to  the  States.  Congress  shall  have  power  to  provide 
for  organizing,  arming,  and  disciplining  the  militia,  and 

governing  such  part  as  may  be  in  the  service  of  the  United 
tales,  reserving   to  the  States  the   appointment  of  the 
officers,  and  the  authority  of  training  the  militia  according 

to  the  discipline  prescribed  by  Congress 1 

(See  Militia.) 

RESIDENCE  of  fourteen  years  within  the  United  States  requisite  in 
eligibility  of  a  person  to  the  office  of  President  or  Vice- 
President  of  the  United  States 2 

RESIGNATION.    Vacancies  by  resignation  of  senators  may  be  filled 

by  the  executive  of  a  State  in  recess  of  legislature 1 

The  seat  is  vacated,  before  notice  that  the  resignation  is 
accepted,  n.  32. 

RESIGNATION.    In  case  of  the  resignation  of  the  President,  the 

office  shall  devolve  on  the  Vice-President,  &c 2 

RESOLUTION.  Every  order,  resolution,  or  vote,  to  which  the  con 
currence  of  the  Senate  and  House  of  Representatives  may 
be  necessary  (except  on  a  question  of  adjournment),  shall 
be  presented  to  the  President  of  the  United  States,  and, 
before  the  same  shall  take  effect,  shall  be  approved  by 
him  ;  or,  being  disapproved  by  him,  shall  be  repassed  by 
two-thirds  of  the  Senate  and  House  of  Representatives, 
according  to  the  rules  and  limitations  prescribed  in  the 

case  of  a  bill.   (See  Sills.) 1 

When  a  resolution  becomes  a  law,  joint  and  concurrent, 
n.  70.  A  joint,  submitting  the  14th  amendment,  n.  276, 
p.  27S. 

RETAINED  rights.  The  enumeration,  in  the  Constitution,  of  cer 
tain  rights,  shall  not  be  construed  to  deny  or  disparage 
others  retained  by  the  people.  Amendments 9 

RETURNED.     Bills,  resolutions,  &c.,  not  approved,  to  be  returned 

by  the  President  to   the  house  in  which  they  originated. .       1 

RETURNED.  Bills,  resolutions,  &c.,  not  returned  within  ten  days, 
Sundays  excepted,  to  become  laws  unless  Congress  ad 
journ  1 

The  President  must  have  ten  entire  days,  n.  69.  • 

RETURNS.  Each  house  shall  be  the  judge  of  the  elections,  re 
turns,  and  qualifications  of  its  own  members 1 

Returns  defined,  n.  46. 

REVENUE.  All  bills  for  raising  revenue  shall  originate  in  the 
House  of  Representatives;  but  the  Senate  may  propose, 

or  concur  with,  amendments,  as  on  other  bills 1 

Revenue  defined,  n.  65. 

REVENUE.  No  preft-rence  shall  be  given,  by  any  regulation  of 
commerce  or  revenue,  to  the  ports  of  one  State  over  those 
of  another 1 

RHODE  ISLAND.  Signed  the  Declaration  of  Independence,  p.  7. 
One  of  the  Confederation,  p.  9.  Signed  the  articles  thereof 
p.  21.  Rule  of  suffrage,  n.  17. 

RHODE  ISLAND  and  Providence  Plantations.  Entitled  to  one  repre 
sentative  in  first  Congress 1 

Two  by  the  census  of  1860,  n.  24.  Assigned  to  first  judicial 
circuit,  n.  197.  Ratified  the  thirteenth  constitutional 
amendment,  n.  274 ;  and  the  fourteenth,  n.  275. 

RIGHT.     The  habeas  corpus  is  a  writ  of,  n.  141. 

RIGHT  of  Congress.  Because  of  the  thirteenth  amendment,  to 
pass  the  civil  rights  law,  n.  274,  p.  273. 

RIGHT  of  conscience.    (See  Religion.) 

RIGHT  of  the  people.  Congress  shall  make  no  law  abridging  the 
right  of  the  people  peaceably  to  assemble,  and  to  petition 
the  government  for  a  redress  of  grievances.  Amend 
ments " 1 

Tho  people  used  in  the  broadest  sense,  n.  248. 


Art.    sec.    cL 
10 


pp. 

45, 2C9 


8  16  29,136 

1  4  84,167 

3  2  24, 76 

1  5  34, 169 


7        3  28,93 

45,  263 

7        2  27, 91 

7        2  27, 91 

51  25, 84 

7        1  27, 90 

9        6  81, 150 

2       8  23, 67 


43,254 


382 


INDEX. 


Art.    sec.     cl.  pp. 

BIGHT  of  the  people.  A  well-regulated  militia  being  necessary  to 
the  security  of  a  free  State,  the  right  of  the  people  to 
keep  and  bear  arms  shall  not  be  infringed.  Amend 
ments 2  43, 256 

EIGHT  of  the  people.  The  right  of  the  people  to  be  secure  in  their 
persons,  houses,  papers,  and  effects,  asrainst  unreasonable 
searches  and  seizures,  shall  not  he  violated  ;  and  no  war 
rants  shall  issue  but  upon  probable  cause,  supported  by 
oath  or  affirmation,  and  particularly  describing  the  pla>'e 
to  be  searched,  and  the  persons  or  things  to  be  seized. 
Amendments 4  44,257 

EIGHT  of.     (See  Life— Liberty— Property.) 

EIGHT  of  evidence  end  defense  in  criminal  prosecutions.  (See 
Criminal.) 

EIGHT  of  trial  by  jury.  In  suits  at  common  law,  where  the  value 
in  controversy  shall  exceed  twenty  dollars,  the  right  of 
trial  by  iury  shall  be.  preserved,  and  no  fact  tried  by  a 
jury  shall  be  otherwise  re-examined  in  any  court  of  the 
United  States,  than  according  to  the  rules  of  common 
law.  Amendments 7  45,266 

EIGHTS.  When  acquired  under  existing  law  there  is  no  power  to 
take  them  away,  n.  257,  p.  260.  The  great  absolute,  of 
property,  n.  253.  The  commanders  of  military  districts 
to  protect  the  rights  of  persons  and  property,  n.  276, 
P-  282,  §  3. 

EIGHTS.     Exclusive  rights  to  writings  and  discoveries  may  be  se 
cured  to  their  authors  and  inventors  for  a  limited  time. .  .1        8        8        29, 121 
(See  Authors  and  Inventors,  notes  107,  10S.) 

EIGHTS  of  domestic  security.  No  soldier  shall,  in  time  of  peace, 
be  quartered  in  any  house  without  the  consent  of  the 
owner,  nor  in  time  of  war,  but  in  a  manner  to  be  pre 
scribed  by  law.  Amendments 3  44, 256 

BIGHTS.  The  enumeration,  in  the  Constitution,  of  certain  rights, 
shall  not  be  construed  to  deny  or  disparage  others  retained 

by  the  people.   Amendments 9  45,268 

These  certain  rights  defined,  n.  268. 

EIGHTS.  A  naturalized  citizen  possesses  all  the,  of  a  native 
citizen,  n.  93.  And  this  right  of  naturalization  was 
accorded  to  Congress,  Id.  The  right  of  the  naturalized 
citizen  takes  effect  from  birth,  n.  '274.  p.  276.  The  rights 
of  owners  of  slaves  after  emancipation,  n.  274,  pp.  277,  27S, 

EOADS.    Congress  shall  have  power  to  establish  post-offices  and 

post-roads 1        8        7        29, 119 

(See  Post-offices  and  Post-roads,  notes  104-106.)     Post- 
roads  defined,  n.  106.    The  number  of  miles  of,  n.  105. 

EOBKRDEAU,  DANIKL,  of  Pennsylvania.  Signed  Articles  of  Con 
federation,  p.  21. 

BODNEY  CAESAR,  of  Delaware.  Signed  the  Declaration  of  Inde 
pendence,  p.  7. 

Eoss,  GKOKGE,  of  Pennsylvania.  Signed  Declaration  of  Inde 
pendence,  p.  7. 

Eoss,  JAMES.     Presiding  officer  of  the  Senate,  n.  38,  p.  78. 

BULK.     An  uniform  rule  of  naturalization 1        8        4        28,112 

EULKS  of   proceedings.     Each  house  of  Congress  may  detennine 

the  rules  of  its  proceedings 152          'J*',,  sC 

EULES  concerning  captures.     Congress  shall  have  power  to  make 

rules  concerning  captures  on  land  and  water  1        8      11        29,12? 

This  power  existed  in  the  Congress  of  the  Confedera 
tion,  Art.  IX.  p.  14. 

EULES  and  articles  of  war.  Congress  shall  have  power  to  make 
rules  for  the  government  and  regulation  of  the  land  and 
naval  forces.  . 1  8  14  29,133 

BULKS  of  the  common  law.  No  fact  tried  by  a  jury  shall  be  other- 
wise  re-examined  in  any  court  of  the  United  States  than 
according  to  the  rules  of  the  common  law.  Amend 
ments...! 7  45,266 

(See  Common  Law.) 


INDEX. 


383 


Art.    sec.    cl.         pp. 

KUNAWAY  slaves,  or  persons  held  to  service  or  labor,  and  fugi 
tives  from  justice  shall  be  delivered  up,  &c 4  2  2&:J  38,229 

(See  F  gitiue,  notes  223,  224.  225  ) 

Eusn,  BKNJAMIN.  «f  Pennsylvania.  Signed  the  Declaration  of 
Independence,  p.  7. 

KirTLEDGK,  EDWARD,  of  South  Carolina.  Signed  Declaration  of 
Independence,  p.  8. 

KITTLED*; K.  JOHN.  Chief-Justice  and  Associate  Justice  of  the 
Supreme  Court,  n.  197,  pp.  192,  193. 

SCIENCE  and  useful  arts.  Congress  shall  have  power  to  promote 
the  progress  of  science  and  useful  arts,  by  securing,  for 
limited  times,  to  authors  and  inventors,  the  exclusive 

right  to  their  respective  writinss  and  discoveries 188          2D,  121 

Science  defined  and  distinguished  from  art,  n.  107,  p.  122. 
Science  teaches  us  to  know,  art  to  do,  n.  107,  p.  122. 

SCUDPER,  NATHANIEL,  of  New  Jersey.  Signed  the  Articles  of 
Confederation,  p.  21. 

SBABCHKS  and  seizures.  The  right  of  the  people  to  be  secure  in 
their  persons,  houses,  papers,  and  effects  against  un 
reasonable  searches  and  seizures  shall  not  be  violated,  and 
no  warrant  shall  issue  but  upon  probable  cause,  supported 
by  oath  or  affirmation,  and  particularly  describing  the 
place  to  be  searched,  and  the  persons  or  things  to  be 

seized.     Amendments 4  44,257 

Searches  are  always  unreasonable  when   without  au- 
*hority  of  law,  n.  251. 

SWAT  of  government.  Neither  house,  during  the  session  of  Con 
gress,  shall,  without  the  consent  of  the  other,  Adjourn  for 
more  than  three  days,  nor  to  any  other  place  than  that  in 
which  the  two  houses  shall  be  sitting 154  26,88 

SEAT  of  government.  Congress  shall  have  power  to  exercise  ex 
clusive  legislation  in  all  cases  whatsoever,  over  such  dis 
trict  (not  exceeding  ten  miles  square)  as  may,  by  cession 
of  particular  States,  and  the  acceptance  of  Congress,  be 
come  the  seat  of  the  government  of  the  United  States, 
and  to  exercise  like  authority  over  all  places  purchased  by 
consent  of  the  legislature  of  the  State  in  which  the  same 
shall  be,  for  the  erection  of  forts,  magazines,  'arsenals, 

dock  -yards,  and  other  needful  buildings  '. 1        8      17        30,136 

(See  District  of  Columbia.) 

SEAT  of  government  of  the  United  States.  The  list  of  electoral 
votes  for  President  and  Vice-President  shall  be  transmit 
ted,  sealed,  to  the  seat  of  the  government  of  the  United 
States,  directed  to  the  president  of  the  Senate.  Amend 
ments 12 

SEATS  of  senators.      Terms  at  which   the   seats  of   the  several 

classes  of  senators  shall  be  vacated 1        2        2          24, 76 

SECESSION  and  nullification  had  the  same  poisonous  root,  Pref.  p.  vii. 

SECRECY.  Each  house  of  Congress  shall  keep  a  journal  of  its  pro 
ceedings,  and  from  time  to  time  publish  the  same, 
excepting  such  parts  as  may  in  their  judgment  require 
secresy 1  5  3  26, 8T 

SKCRETARIKS  of  different  departments  constituting  cabinet  of  the 
President,  n.  176. 

SECRETARIES  of  War,  of  the  Treasury,  of  the  Interior,  «fcc., 
hold  their  offices  how  long.  n.  184.  p.  179,  §  1. 

SECRETARY  of  State.  Proclamation  about  thirteenth  consti 
tutional  amendment,  n.  274.  Action  of,  on  fourteenth 
amendment  and  views  in  regard  to  same,  n.  275. 

SECRETARY  of  the  Treasury.    Report  of  public  debt,  n.  78. 

SECRETARY  (if  the  Senate,  at  the  clos«  of  each  session  to  deliver  to 
the  Secretary  of  the  Treasury,  Ac.,  a  full  list  of  the  per 
sons  nominated  and  rejected,  n.  184,  p.  ISO,  §  7. 

SECRETARY  of  the  Treasury.  Report  of.  on  the  national  debt,  n.  78, 
p.  99.  Holds  hisoftice  diuinir  the  Presidential  terra,  n.  184, 
p.  179,  §  1.  Secretary  of  the  Senate  to  report  to  the  Secre 
tary  of  the  Treasury  a  list  of  officers,  n.  184,  p.  180,  §  7. 


384  INDEX. 

Art.    sec.    cl.  pp. 

President  to  notify  the  Secretary  of  the  Treasury  of  desig 
nations,  <fcc.,  Id.  p.  181,  §  8. 

SECURE  the  blessings  of  liberty.  The  Constitution  established 
to  secure  the  blessings  of  liberty  to  ourselves  and  our  pos 
terity,  &c.  Preamble 22,53 

What  liberty  was  intended  to  be  secured,  n.  12.    How 
it  was  attained,  Id. 

SECURE.  The  right  of  the  people  to  be  secure  in  their  persons, 
houses,  papers,  and  effects,  against  unreasonable  searches 

and  seizures,  shall  not  be  violated.    Amendments 4  44,  257 

(See  Houses,  Searches.) 

SECURITIES.  Congress  shall  have  power  to  provide  for  the  punish 
ment  of  counterfeiting  the  securities  and  current  coin  of 
the  United  States 1  8  29,113 

SECURITY  of  a  free  State.  A  well  regulated  militia  being  neces 
sary  to  the  security  of  a  free  State,  the  right  of  the  people 
to  keep  and  bear  arms  shall  not  be  infringed.  Amend 
ments 2  43,25 

(See  Militia.) 

SEDGWICK,  THEODORE.    Speaker  of  the  House  of  Reps,  n.  26. 

SEIZURES.  The  right  of  the  people  to  be  secure  against  un 
reasonable  seizures  shall  not  be  violated.  (See  Searches.) 

Amendments 4  44,257 

Searches  and  seizures  are  always  unreasonable  when 
not  authorized  by  law,  n.  257. 

SENATE.  It  is  intended  to  be  a  permanent  body  with  perpetual 
existence,  n.  81.  How  it  might  corne  to  an  end,  Id. 

SENATE  and  House  of  Representatives.  The  Congress  of  the  United 
States  shall  consist  of  a  Senate  and  House  of  Representa 
tives 1  1  2?,58 

The  Senate  ought  to  be  first  defined,  n.  15. 

SENATE  and  House  of  Representatives.     (See  Congress.) 

SEXATK.  The  Senate  shall  be  composed  of  two  senators  from 
each  State,  chosen  by  the  legislature  for  six  years,  and 

each  senator  shall  have  one  vote 1        8        1          24,74 

The   subject  considered,  n.  28.      The  decisions    on 
elections,  n.  29.     The  law  for  electing,  n.  30. 

SENATE.  The  Vice-President  of  the  United  States  shall  be  Presi 
dent  of  the  Senate,  but  shall  have  no  vote  unless  they  be 

equally  divided 184         24,7T 

List  of  Vice-Presidents,  n.  37. 

SENATE.  The  Senate  shall  choose  their  other  officers,  and  also  a 
President  pro  tempore,  in  the  absence  of  the  Vice- 
President,  or  when  he  shall  exercise  the  oftice  of  presi 
dent  «>f  the  United  States 135  24,78 

List  of  Presidents,  pro  tempore,  n.  3S. 

SENATE.  The  Senate  shall  have  the  sole  power  to  try  all  im 
peachments;  when  sitting  for  that  purpose  they  shall  be 
on  oath  or  affirmation.  When  the  President  of  the  United 
States  is  tried,  the  Chief-Justice  shall  preside;  and  no 
person  shall  be  convicted  without  the  concurrence  of  two- 

thirdi  of  the  members  present 1        3        C         25,81 

(See  Impeachment,  notes  39,  40, 194.) 

SBNATK.  The  judgment  of  the  Senate,  in  cases  of  impeachment, 
shall  not  extend  further  than  to  removal  from  office,  and 
disqualification  to  hold  and  enjoy  an  office  of  honor,  trust, 
or  profit  under  the  United  States,  but  the  party  convicted 
shall,  nevertheless,  be  liable  and  subu-ct  to  indictment, 
trial,  judgment  and  punishment,  according  to  \-.\w 1  8  7  25,  82 

BINATK  of  the  United  States.    The  Senate  shall  be  the  judge  of 
the    election*,   returns,   and   qualifications    of   its    own 
members;  a  majority  shall  constitute  a  quorum  to  do 
lie: 


business,  but  a  smaller  number  may  adjourn  from  day 
to  day,  and  may  be  authorized  to  compel  the  attendance  of 
absent  members,  in  such  manner,  and  under  such  penal 
ties,  as  that  house  may  provide 1  5  1  25,84 


SKNATK. 


(See  Qualification,  n.  46.) 

The  fckmate  muy  determino  the  rules  of  its  proceedings, 


INDEX. 


385 


Art. 


sec.    cl. 
5       2 


pp. 

26,  Sv 


punish  its  members  for  disorderly  behavior,  and,  with  the 

concurrence  of  two-thirds,  expel  a  member 1 

SENATE.     The  Senate  shall  keep  &  journal  of  its  proceedings,,  and 

from  time  to  time  publish  the  same,  excepting  such  parts 

as  may,  in  their  judgment,  require  secrecy;  and  the  yeas 

and    lays  of  the  members,  on  any  question,  shall,  at  the 

desire  of   one-fifth  of  those  present,  be  entered   on  the 

journal 153          26,87 

SENATE.     The    Senate  shall  not,  during  the  session  of  Congress, 

without  the  consent  of  the   House  of  Representatives, 

adjourn  for  more  than  three  days,  nor  to  any  other  place 

than  that  in  which  the  two  houses  shall  be  sitting 1        5        4          26,88 

SENATE.     All  bills  for  raising  revenue  shall  originate  in  the  House 

of  Representatives;  but  the  Senate  may  propose,  or  con 
cur  with,  amendments,  as  on  other  bills.  (See  Mils.) 1  7  1  27, 90 

SENATE.     Every  bill,   order,  resolution   and   vote  (except   on   a 

question  of  adjournment),  originating  in  either  house  of 

Congress,   shall   be  presented,  to    the    President  of   the 

UnitedStates 1       I  2&3       27,91 

(For  proceedings,  see  Bill — Resolution.) 
SENATE.    Action  of  Senate  on  bills,  resolutions,  orders,  and  yotea. 

(See  Bills,  &c.) 
SENATK.     The  President  shall  have  power,  by  and  with  the  advice 

and  consent  of  the  Senate,  to  make  treaties,  provided  two- 
thirds  of  the  senators  present  concur  ;  and  he  shall  nomi 
nate,  and,  by  and  with  the  advice  and  consent  of  th« 

Senate,  shall  appoint  ambassadors,  other  public  ministers, 

and  consuls,  judges  of  the  Supreme  Court,  and  all  other 

officers  of  the  United  States,  whose  appointments  are  not 

herein  otherwise  provided  for,  and  which  shall  be  estab 
lished  by  law.  But  the  Congress  may,  by  law,  vest  the 

appointment  of  such  inferior  officers  as  they  think  proper, 

in  the  President  alone,  in  the  courts  of  law,  or  in  the 

heads  of  departments 222        85,174 

(See  President,) 
SENATE.     The  President  shall  have  power  to  fill  up  all  vacancies 

that  may   happen  during  the   recess  of  the   Senate,   by 

granting  commissions  which  shall  expire  at  the  end  of 

their  next  session 2        2        3        36,182 

See  the  subject  discussed,  n.  185.     The  law  upon  the 

subject,  n.  184 

SENATK     The  President  mar,  on  extraordinary  occasions,   con 
vene  both  houses  of  Congress,  or  either  of  them 2        3  135, 133 

SENATE.     No  State,  without  its  consent,  shall  be  deprived  of  its 

equal  suffrage  in  the  Senate. 5  40,  246 

SENATE.    The  lists  of  votes  of  electors  of    President  and  Vice- 
President  shall  be  directed  to  the  president  of  the  Senate. 

Amendments 12  1        46,164 

SENATE.     The  president  of  the  Senate  shall,  in    presence  of  the 

Senate  and  House  of  Representatives,  open  all  the  certifi 
cates  of  the  electors  of  President  and  Vice-President  of 

the  United  States.     Amendments 12  1        46, 1C4 

SENATK.     If  no  person  have  a  majority  of  the  electoral  votes  as 

Vice-President,  then,  from  the  two  highest  numbers  on 

the  list  the  Senate   shall  choose  the  Vice-President;   a, 

quorum  for  the  purpose  shall  consist  of  two-thirds  of  the 

whole  number  of  senators,  and  a  majority  of  the  whole 

number  shall  be  necessary  to  a  choice.     Amendments....     12  \        47,  \'-'f> 

SKNATOK.    Each  senator  Khali  have  one  vote 131          24,74 

SENATOR.     No   person  shall   be  a  senator  who    shall    not  have 

attained  the  age  of  30  y«vrs — been  nine  years  a  citizen  of 

the  United  States,  and.'when  elected,  an  inhabitant  of  the 

State  for  which  he  shall  be  chosen  133         24,7T 

SENATOR  or  representative.    No  senator  or  representative  shall, 

during  the  time  for  which  he  was  elected,  be  appointed  to 

any  civil  office  under  the  authority  of  the  United  States, 

which  shall  have  been  created,  or  the  emoluments  whereof 

shall  have  been  increased  during  such  time ;  and  no  per- 

17 


386  INDEX. 

Art    sec.    cl.          pp. 

son  holding  any  office  nnder  the  United  States  shall  be  a 

member  of  either  house  during  his  continuance  in  office..       162          27,90 
(See  Qualifications,  notes  35,  46.) 

SENATOR.     No  senator  shall  he  appointed  an  elector  of  President 

or  Vice- President  of  the  United  States 2        1        2        32,  lfi-1 

Disqualification  of.  (See  Representatives.)  Amend 
ments 14  3  49,279 

SENATORS.    The  Senate  of  the  United  States  shall  be  composed  of 

two  senators  from  each  State 1        3        1          24. 74 

SENATORS.     Two  senators  shall   be   chosen  by  the  legislature  of 

each  State  for  six  years 1        8        1          24,  74 

SENATORS  divided  as  nearly  as  may  be  into  three  classes  after  the 
first  election.  The  seats  of  the  first  class  vacated  at  the 
expiration  of  the  second  year.  The  seats  of  the  second 
class  vacated  at  expiration  of  the  fourth  year.  The  seats 
of  the  third  class  vacated  at  expiration  of  the  sixth  year; 
so  that  one-third  may  be  chosen  every  second  year 132  24,70 

SENATORS.  If  vacancies  happen  in  seats  of  senators,  by  resigna 
tion  or  otherwise,  during  the  recess  of  the  legislature  of 
any  State,  the  executive  thereof  may  make  temporary  ap 
pointments  until  next  meeting  of  the  legislature,  which 

shall  then  fill  such  vacancies 1        8        2          24,76 

(See  Classification,  n.  34.) 

SENATORS.  The  times,  places,  and  manner  of  holding  elections  for 
senators  and  representatives,  shall  be  prescribed  in  each 
State  by  the  legislature  thereof;  but  the  Congress  may, 
at  any  time,  by  law,  make  or  alter  such  regulations,  ex 
cept  as  to  the  places  of  choosing  senators 141  23, 83 

SENATORS  and  representatives  shall  receive  a  compensation  for 
their  services,  to  be  ascertained  by  law,  and  paid  out  of 

the  treasury  of  the  United  States 101          26.88 

They  shall,,  in  all  cases  except  treason,  felony,  and  breach 
of  the  peace,  be  privileged  from  arrest  during  their  attend 
ance  at  the  session  of  their  respective  houses,  and  in 
going  to  and  returning  from  the  same;  and  for  any  speech 
or  debate  in  either  house  they  shall  not  be  questioned  in 
any  other  place 161  26,88 

SENATORS  of  the  United  States  shall  be  bound  by  oath  or  affirma 
tion  to  support  the  Constitution  of  the  United  States  ...  6  8  40, 250 

SERVICE.     Persons  bound  to  service  for  a  term  of  years  included 

in  representative  numbers 128          23,67 

SERVICE  of  the  United  States.  The  Congress  shall  have  power  to 
provide  for  governing  such  parts  of  the  militia  as  may  be 
employed  in  the  service  of  the  United  States 1  8  16  29,135 

SERVICE  of  the  United  States.  The  President  shall  be  commander- 
in-chief  of  the  militia  of  the  several  States,  when  called 
into  the  actual  service  of  the  United  States 2  2  1  35,172 

SERVICE  or  labor.    (See  Slaves- -Fugitives.) 428        89,'J;52 

SEUVICE.  No  person  shall  be  held  to  answer  for  a  capital  or  other 
wise,  infamous  crime,  unless  on  a  presentment  or  indict 
ment  of  a  grand  jury,  except  in  cases  arising  in  the  land 
or  naval  forces,  or  in  the  militia  when  in  actual  service 
in  time  of  war  or  public  danger.  Amendments 5  44,253 

FKUVICEB.  The  senators  and  representatives  shall  receive  a  com- 
*cnsation  for  their  services,  to  be  ascertained  by  law,  and 

paid  out  of  the  treasury  of  the  United  States 1        6        1          26, 83 

(See  Compensation,  n.  53.) 

SERVICES.    The  President  shall,  at  stated  times,  receive  for  his 

services  a  compensation,  &c 2        1        6        34.170 

(See  President,  n.  173.) 

SERVICES.  The  judges,  both  of  the  supreme  and  inferior  courts, 
shall  hold  their  offices  during  good  behavior,  and  shall,  at 
stated  times,  receive  for  their  services  a  compensation 
which  shall  not  be  diminished  during  their  continuance  in 
office 8  1  1  86,189 

SESSION  of  Congress.    (See  Meeting.) 

SESSION.  The  Congress  shall  assemble  at  least  once  in  every  year, 
and  such  meeting  or  session  shall  be  on  the  first  Monday 


INDEX. 


387 


Art    sec.     cl.          pp. 
In  December,  unless  they  shall  by  law  appoint  a  different 

day 142         25,83 

(See  Congress,  n.  43,  for  the  act  fixing  sessions.) 

SESSION.  Neither  house,  during  the  session  of  Congress,  shall, 
without  the  consent  of  the  other,  adjourn  for  more  than 
three  days,  nor  to  any  other  place  than  that  in  which  the 
two  houses  shall  be  sitting... 1  5  4  26,88 

SESSION.  Senators  and  representatives  shall,  in  all  cases  except 
treason,  felony,  and  breach  of  the  peace,  be  privileged  from 
arrest  during  their  attendance  at  the  sessions  of  their  re 
spective  houses,  and  in  going  to  and  returning  from  the 

same 161          26,88 

(See  Arrest — Privilege.) 

SESSION  of  the  Senate.  The  President  shall  have  power  to  fill  up 
all  vacancies  that  may  happen  during  the  recess  of  the 
Senate,  by  granting  commissions  which  shall  expire  at 
the  end  of  their  next  session 223  36,182 

FEWARD,  WILLIAM  H.    Secretary  of  State,  n.  274.  p.  272. 

SHERMAN,  WILLIAM  T.  Lieutenant-General  in  the  United  States 
Army,  n.  124. 

SHIPS  of  war.    No  State  shall,  without  the  consent  of  Congress, 

keep  ships  of  war  in  time  of  peace 1       10        3        32,161 

SIGNED.     Every  bill,  resolution,  order,  or  vote,  approved,  shall  be 

signed  by  the  President 1        7        2          27,91 

SIGNED.    Any  bill,  resolution,  <fec.,  not  returned  within  ten  days, 

to  become  a  law  as  if  it  had  been  signed  by  the  President.      172          27,91 

SIGNERS  of  the  Declaration  of  Independence,  pp.  7,  8;  of  the 
Articles  of  Confederation,  p.  21 ;  of  the  Constitution  of 
the  United  States,  pp.  41,  42,  252,  viz.:— George  Washing 
ton,  President  and  Deputy  from  Virginia.  John  Lang- 
don,  Nicholas  Gilman,  New  Hampshire.  Nathaniel  Gor- 
ham,  Rufus  King,  Massachusetts.  William  Samuel  John 
son,  Roger  Sherman,  Connecticut.  Alexander  Hamilton, 
New  York.  William  Livingston,  David  Brearley,  William 
Paterson,  Jonathan  Dayton,  New  Jersey.  Benjamin 
Franklin,  Thomas  Mifflin,  Robert  Morris,  George  Clymer, 
Thomas  Fitzsimmons,  Jared  Ingersoll,  James  Wilson, 
Gouverneur  Morris.  Pennsylvania.  George  Reed,  Gun 
ning  Bedford,  Jr.,  John  Dickinson.  Richard  Bassett  Jacob 
Bl-oom,  Delaware.  James  McIIenry,  Dan.  of  St 
Thomas  Jenifer,  Daniel  Carroll,  Maryland.  John  Blair, 
James  Madison.  Jr.,  Virginia.  William  Blotint,  Richard 
Dobbs  Spaight.  Hugh  Williamson,  North  Carolina.  John 
Rutledge,  Charles  C.  Pinckney,  Charles  Pinckney,  Pierce 
Butler,  South  Carolina.  William  Few,  Abraha'm  Bald 
win,  Georgia.  Attest:  William  Jackson,  Secretary. 

SILVER.     No  State  shall  make  any  thing  but  gold  and  silver  coin 

a  tender  in  payment  of  debts 1      10        1        81.153 

Si.AYEir^,     Neither  slavery  nor  involuntary  servitude,  except  as  a 

Sunishment  for  crime,  whereof  the  party  shall  have  been 
uly  convicted,  shall  exist  within  the  United  States,  or 

any  place  subject  to  their  jurisdiction.     Amendments 13        1  48,271 

This  amendment  trenches  directly  upon  the  power  of 

the  States  and  the  people  of  the  States,  n.  274,  p.  273.     It 

chanced  the  government  to  one  of  freedom.  Id.,  and  pp. 

276,  277,  285.  It  gave  the  right  to  pass  the  civil  rights  bill,  Id. 

1>.  273.  And  made  citizens  of  those  who  before  were  slaves, 

Id.  p.  275.     What  the  several  States  only  could  have  done, 

Congress  has  done  by  this  amendment,  Id.  p.  276.     Its 

effect  was  to  abolish  slavery  wherever  it  existed  in  the 

I'nited   States,  n.  274,  p.  277.     And   it  carried  along  the 

right  to  protect  the  freedmen  by  all  necessary  legislation, 

p.  277.     It  did  not  affect  obligations  given  for  slaves  be 
fore  the  manumission,  Id.  pp.  277,  278 

Si  AYKS.      Three-fifths  of  all   slaves  included  in  representative 

numbers.... 123          23,67 

SLAVES.    The  migration  or  importation  of  such  persons  as  any  of 

the  Slates  now  existing  shall  think  proper  to  admit,  shall 


388  INDEX. 

Art.  sec.    cl.         pp. 

not  be  prohibited  by  the  Congress  prior  to  the  year  1808, 
but  a  tax  or  duty  may  be  imposed  on  such  importation, 
not  exceeding  ten  dollars  for  each  person 191  80,140 

SLAVES.  No  person  held  to  service  or  labor  in  one  State,  under 
the  laws  thereof,  escaping  into  another,  shall,  in  conse 
quence  of  any  law  or  regulation  therein,  be  discharged 
from  such  service  or  labor,  but  shall  be  delivered  up  on 
claim  of  the  party  to  whom  such  service  or  labor  may  be 
due 4  2  3  39, 232 

SLAVES.     No  amendment  made  prior  to  1SOS  shall  prohibit  the 

importation  of  persons  (or  slaves) 5  40, 246 

SOLDIER.  No  soldier  shall,  in  time  of  peace,  be  quartered  in  any 
house  without  the  consent  of  the  owner,  nor  in  time  of 
war  but  in  a  manner  to  be  prescribed  by  law.  Amend 
ments 3  44,256 

Soldier  and  quartered  defined,  n.  250.  Collections  of 
them  into  armies,  n.  125.  The  right  to  enlist  minors,  Id. 
Limitation  of  the  power  to  vote  supplies  for  them,  n.  127. 
The  militia  are  the  national  soldiers,  n.  130.  The  power  of 
martial  law  over  them,  n.  134.  The  right  to  try  them  by 
military  law.  n.  255. 

SOUTH  CAROLINA.  Signed  the  Declaration  of  Independence,  p.  8. 
One  of  the  Confederation,  p.  9.  Signed  the  articles  thereof, 
p.  21.  Signed  the  Constitution  of  the  United  States, 
pp.  42.  252.  Rule  of  suffrage  in,  n.  17,  p.  64. 

SOUTH  CAROLINA.   Entitled  to  five  representatives  in  first  Congress.      128          23,67 

To  four  by  the  census  of  1860,  n.  24,  p.  09.  Population 
through  each  decade,  n.  24,  pp.  69-70.  Attempted  nullifi 
cation  by,  Pref.  p.viii.  and  n.  144.  Did  not  vote  in  the  Presi 
dential  election  of  1864,  n.  1(57.  Assigned  to  fifth  judicial  cir 
cuit,  n.  197,  p.  192.  Katified  the  thirteenth  constitutional 
am.ndment,  n.  274.  Refused  to  ratify  the  fourteenth, 
n.  275.  Declared  one  of  the  rebel  States,  n.  276,  pp.  282,  286. 
Its  provisional  government  defined,  n.  276,  p.  286.  Regis 
tered  voters  of,  n.  278,  p.  289. 

SPAIGIIT,  RICHARD  DOHBS,  of  North  Carolina.  Signed  this  Con 
stitution,  pp.  42,  252. 

SPEAKER  and  other  officers.    The  House  of  Representatives  shall 

choose  their  Speaker  and  other  officers 125          23,92 

Speaker  defined,  n.  26.  List  of  Speakers,  n.  26,  p.  73. 
When  the  Speaker  becomes  President,  n.  172.  §  8. 

SPEECH.     Senators  and  representatives,  for  any  speech  or  debate  in 

either  house,  shall  not  be  questioned  "in  any  other  place..       161          26,88 
Limitation  of  this  privilege,  n.  61. 

SPEECH.    Congress  shall  make  no  law  abridging  the  freedom  of 

speech.    Amendments 1  43,254 

"Freedom"  defined,  n.  246. 

STANBERY.  HENRY.  Attorney- General  of  the  United  States, 
n.  197,  p.  192. 

STANDARD.    Congress  shall  have  power  to  fix  the  standard  of 

weights  and  measures 1        8        5        29,114 

"Fix"  defined.  " Standard"  defined,  n.  101.  Weights 
and  measures ;  metric  system ;  act  of  Congress  authorizing 
metric  system,  n.  102.  (See  Weights  and  Measures.) 

STATE  of  the  Union.  The  President  shall,  from  time  to  time,  give 
to  the  Congress  information  of  the  state  of  the  Union,  and 
recommend  to  their  consideration  such  measures  as  he 
shall  judge  necessary  and  expedient 281  86,183 

STATE.     A  representative  in  Congress  shall  be  an  inhabitant  of 

the  State  in  which  he  shall  be  chosen 122          23,66 

"  Inhabitant  of  the  State  "  defined,  n.  20. 

STATE.  Each  State  shall  have  at  least  one  representative  in  Con 
gress 128  23,67 

STATE.  When  vacancies  happen  in  the  representation  from  a 
State,  the  executive  thereof  shall  issue  writs  of  election  to 
fill  them 1  2  4  23,72 

STAIE.     The  Senate  of  the  United  States  shall  be  composed  of  two 

senators  from  each  State,  chosen  by  the  legislature  thereof     181         24, 74 


INDEX. 


Art    sec.    cl. 


389 

PP. 


STATE.    If  vacancies  happen  In  seats  of  senators,  by  resignation  or 

otherwise,  during  the  recess  of  the  legislature  of  any  State, 

the  executive  thereof  may  make  temporary  appointments, 

until  the  next  meeting  of  the  legislatuie,  which  shall  then 

fill  such  vacancies 182          24,76 

STATE.     A  senator  in  Congress  shall  be  an  inhabitant  of  the  State 

for  which  he  shall  be  chosen 183          24,77 

STATE.    The   times,  places,  and  manner  of  holding  elections  for 

senators  and  representatives  shall  be  prescribed  in  each 

St;ite  by  the  legislature  thereof;  but  the  Congress  may,  at 

any  time,  by  law.  make  or  alter  such  regulations,  except 

as  to  the  places  of  choosing  senators 1        4        1          25,83 

STATE.     No  tax  or  dutv  shall  be  laid  on  articles  exported  from  any 

State ". 195        81,150 

STATE.    No  preference  shall  be  given,  by  any  regulation  of  com 
merce,  or  revenue,  to  the  ports  of  one  State  over  those  of 

another;  nor  shall  vessels  bound  to  or  from  one  State  be 

obliged  to  enter,  clear,  or  pay  duties  in  aiiother 196        31,150 

STATE.    No  State  shall  enter  into  any  treaty,  alliance,  or  confeder 
ation;  grant  letters  of  marque  and  reprisal ;  coin  money  ; 

emit  bills  of  credit;  make  any  thing  but  gold  and  silver 

coin  a  tender  in   payment  of  debts;  pass  any  bill  of  at 
tainder,  ex-post  facto  law,  or  law  impairing  the  obligation 

of  contracts,  or  grant  any  title  of  nobility 1      10        1        31.153 

STATE.    No  State  shall,  without  the  consent  of  the  Congress,  lay 

any  imposts  or  duties  on  imports  or  exports,  except  %vhat 

may  be- absolutely  necessary  for  executing  its  inspection 

laws;  and  the   net  produce  of  all  duties  and  imposts,  laid 

by  any  State  on  imports  or  exports,  shall  be  for  the  use  of 

the  Treasury  of  the  United  States  ;  and  all  such  laws  shall 

be  subject  to  the  revision  and  control  of  the  Congress 1      10        2        32,161 

STATE.     No  State  shall,  without  the  consent  of  Congress,  lay  any 

duty  of  tonnage,  keep  troops  or  ships  of  war  in  time  of 

peace,  enter  into  any  agreement  or  compact  with  another 

State,  or  with  a  foreign  power,  or  engage  in  war,  unless 

actually  invaded,  or  in  such  imminent  danger  as  will  not 

admit  of  delay  ." 1      10        3        32.161 

(For  the  extent  of  these  inhibitions  on  the  States,  see 

Articles  of  Confederation,  Art.  VI.  p.  11.) 

STATE.    Each  State  shall   appoint,  in  such  manner  as  the  legis 
lature  thereof  may  direct,  the  electors  of  President  and 

Vice-President  of  the  United  States.     (See  Election.). . . .      212        32,164 
STATE.    The  judicial  power  shall  extend  to  controversies  to  which 

the   United  States  shall    be  a  party;    to  controversies 

between  two  or  more  States ;  between  a  State  and  citizens 

of  another  State;  between  citizens  of  different  States; 

between  citizens  of  the  same  State  claiming  lands  under 

grants  of  different  States;  and  between  a  State,  or  the 

citizens    thereof,  and   foreign    States,  citizens,  or    sub 
jects 3        2        1        37,194 

(See  Judicial  Power.) 
STATE.    In  all  cases  in  whicH  a  State  shall  be  a  party,  the  Supreme 

Court  shall  have  original  jurisdiction 322        37,204 

STATE.     The  trial  of  all  crimes,  except  in  cases  of  impeachment, 

shall  be  by  jury  ;  and  such  trial  shall  be  held  in  the  State 

where  the  said  crimes  shall  have  been  committed  ;  but 

•when  not  committed  within  any  State,  the  trial  shall  be 

at  such  place  or  places  as  the  Congress  may  by  law  have 

directed 3        2        3        37,209 

(See  Crimes.) 
STATE.    Full  faith  and  credit  shall  be  given  in  each  State  to  the 

public  acts,   records,  and  judicial   proceedings  of  every 

other  State.     And  the  Congress  may,  by  general  laws, 

prescribe  the  manner  in  which  such  acts,  records,  and  pro 
ceedings  shall  be  proved,  and  the.  effect  thereof . .       4        1        1        38,  213 

STATE.  The  citizens  of  each  State  shall  be  entitled  to  all  privileges 

and  immunities  of  citizens  in  the  several  States 421        88,222 

(See  Citizens— Privileges— ImnntnUieis,  nott  s  220,  221.) 


890 


INDEX. 


Art.  sec.    cl. 


pp. 


STATK.  A  person  charged  in  any  State  with  treason,  felony,  or 
other  crime,  who  shall  flee  from  justice,  and  be  found  in 
another  State,  shall,  on  demand  of  the  executive  authority 
of  the  State  from  which  he  fled,  be  delivered  up  to  be  re 
moved  to  the  State  having  jurisdiction  of  the  crime 4  2  2  88,  2_'i) 

STATE.  No  person  held  to  service  or  labor  in  one  State,  under  the 
laws  thereof,  escaping  into  another,  shall,  in  consequence 
of  any  law  or  regulation  therein,  be  discharged  from  such 
service  or  labor,  but  shall  be  delivered  up  on  claim  of  the 

party  to  whom  such  service  or  labor  may  be  due 423        39,232 

(See  Fuyitivex — Escaped) 

STATE.  The  Congress  snail  have  power  to  dispose  of,  and  make 
all  needful  rules  and  regulations  respecting  the  territory 
or  other  property  belonging  to  the  United  States;  and 
nothing  in  this  Constitution  shall  be  so  construed  as  to 
prejudice  any  claim  of  the  United  States,  or  of  any  par 
ticular  State 432  89,238 

STATK.  The  United  States  shall  guarantee  to  every  State  in  this 
Union  a  republican  form  of  government,  and  shall  protect 
each  of  them  auainst  invasion,  and,  on  application  of  the 
legislature,  or  of  the  executive  (when  the  legislature  can 
not  be  convened),  against  domestic  violence 441  39,242 

State  defined,  n.  233,  p.  242. 

STATE.    No  Stato,  without  its  consent,  shall  be  deprived  of  its 

equal  suffrage  in  the  Senate 5  40, 246 

STATE.  The  judges  in  every  State  shall  be  bound  by  the  Consti 
tution,  laws,  and  treaties  of  the  United  States,  any  thing 
in  the  Constitution  or  laws  of  any  State  to  the  contrary 
notwithstanding 6  2  40,247 

STATE  legislatures.  The  members  of  the  several  State  legislatures, 
and  all  executive  and  judicial  officers,  both  of  the  United 
States  and  of  the  several  States,  shall  be  bound  by  oath  or 

affirmation  to  support  this  Constitution 6  3        40,250 

(See  Oath,  n.  242.) 

STATE.  A  well-regulated  militia  being  necessary  to  the  security 
of  a  free  State,  the  ritfht  of-the  people  to  keep  and  bear 
arms  shall  not  be  infringed  Amendments 2  43,256 

STATE.  In  all  criminal  prosecutions,  the  accused  shall  enjoy  the 
right  to  a  speedy  and  public  trial,  by  an  impartial  jury  of 
the  State  and  district  wherein  the  crime  shall  have  been 
committed ;  which  district  shall  have  been  previously 
ascertained  by  law.  Amendments 6  44,263 

STATE.  In  choosing  the  President  (by  the  House  of  Representa 
tives),  the  vote  shall  be  taken  by  States,  the  representa 
tives  from  each  State  having  one  vote :  a  quorum  for  this 
purpose  shall  consist  of  a  member  or  members  from  two- 
thirds  of  the  States,  and  a  majority  of  all  the  Slates  shall 
be  necessary  to  a  choice.  Amendments 12  1  4G,  1G4 

STATE.  The  electors  shall  meet  in  their  respective  States  and 
vote,  by  ballot,  for  President  and  Vice-President,  one  of 
whom  at  least  shall  not  be  an  inhabitant  of  the  came 
State  with  themselves.  Amendments 12  1  46,lf>4 

ST.VTKH.  Declared  free  and  independent,  p.  6.  Articles  of  per 
petual  union  between,  pp.  8-9.  Each  retained  its  sove 
reignty,  Art.  I.  p.  9.  Entered  into  a  firm  league.  Art. 
Ill  p.  9.  The  rights  of  the  people  of  the  different  States, 
Art.  IV.  p.  10.  Rendition  and  records,  Id.  To  choose 
delegates,  Art.  V.  p.  10.  Inhibitions  upon,  Art.  VI.  p.  12. 
To  supply  a  common  treasury,  Art.  ViII.  p.  13. 

STATES.     llepresentatives  in  Congress   to  be   chosen  every  two 

yenrs  by  the  people  of  the  States 121          22,56 

The  people  defined  and  discussed,  n.  16.     The  qualifica 
tions  of  voters  in  ench,  alphabetically  arranged,  n.  17. 

STATES.  Representatives  and  direct  taxes  to  be  apportioned 
among  the  several  States  according  to  their  respective 
numbers 128  23,67 

STATES  entitled  to  representatives  in  the  first  Congress  were : 
New  Hampshire,  3;  Massachusetts,  8;  Rhode  Island  and 


INDEX.  891 

Art,  see.    cl.  pp. 

Providence  Plantations.  1 ;  Connecticut,  5 ;  New  York,  6; 
New  Jersey,  4;  Pennsylvania,  8;  Delaware,!;  Maryland, 
6;  Virginia,  10;  North  Carolina,  5;  South  Carolina,  5; 

Georgia,  ft,     Whole  number,  65 123          2.3,67 

STATES.     Congress  shall  have  power  to  regulate  commerce  among 

the  several  States  und  with  the  Indian  tribes 1        8        3        28, 105 

(See  Commerce.) 

STATES.  Congress  shall  have  power  to  provide  for  organizing, 
arming,  and  disciplining  the  militia,  and  for  governing 
such  part  of  them  as  may  be  employed  in  the  service  of 
the  United  States,  reserving  to  the  States  respectively  the 
appointment  of  the  officers,  and  the  authority  of  training 
the  militia  according  to  the  discipline  prescribed  by  Con 
gress 1  8  16  29,135 

STATES.  Congress  shall  have  power  to  exercise  exclusive  legisla 
tion  in  all  cases  whatsoever,  over  such  district  (n*ot  exceed 
ing  ten  miles  square)  as  may,  by  cession  of  particular 
States  and  the  acceptance  of  Congress,  become  the  seat  of 
the  government  of  the  United  States;  and  to  exercise  like 
authority  over  all  places  purchased  by  the  consent  of  the 
legislature  of  the  State  in  which  the  same  shall  be,  for  the 
erection  of  forts,  magazines,  arsenals,  dock-yards,  and  other 

needful  buildings 1        8      17        80,136 

The  District  was  ceded  by  Virginia  and  Maryland,  n.  137. 
(See  District  of  Columbia.) 

STATES.  The  migration  or  importation  of  such  persons  as  any  of 
the  States  now  existing  shall  think  proper  to  admit,  shall 
not  be  prohibited  by  Congress  prior  to  the  year  1808,  but  a 
tax  or  duty  may  be  imposed  on  such  importation  not  ex 
ceeding  ten  dollars  for  each  person 191  30,140 

STATES.  The  President  shall  not  receive,  during  the  time  for 
which  he  shall  have  been  elected,  any  emolument  from 

any  of  the  States 2        1        G        34,170 

STATES.  The  President  shall  be  comraander-in-chief  of  the 
militia  of  the  several  States  when  called  into  the  actual 

service  of  the  United  States 221        35,171 

STATES.  New  States  may  be  admitted  by  the  Congress  into  this 
Union ;  but  no  new  State  shall  be  formed  or  erected 
within  the  jurisdiction  of  any  other  State  ;  nor  any  State 
be  formed  by  the  junction  of  two  or  more  States,  or  parts 
of  States,  w'ithout  tho  consent  of  the  legislatures  of  the 

States  concerned,  as  well  as  of  the  Congress 4        8        1        39, 234 

(See  New  States,  notes  229,  230.)     For  a  list  of  the  new 
States,  with  dates  of  admission,  see  note  230. 

STATES.  The  Congress,  whenever  two-thirds  of  both  houses  shall 
deem  it  necessary,  shall  propose  amendments  to  this  Con 
stitution,  or,  on  the  applications  of  the  legislatures  of  two- 
thirds  of  the  several  States,  shall  call  a  convention  for 
proposing  amendments,  which,  in  either  case,  shall  be 
valid  to  all  intents  and  purposes  as  part  of  this  Constitu 
tion,  when  ratified  by  the  legislatures  of  three-fourths  of 
the  several  States,  or  by  conventions  in  three-fourths 

thereof 5  40,  246 

(See  Amendments,  notes  236,  244,  274,  275-286.) 
STATES.    The  ratification  of  the  conventions  of  nine  States  shall 
be  sufficient  for  the  establishment  of  this  Constitution 

between  the  States  so  ratifying  the  same 7  41.252 

(See  Ratification,  n.  243.) 

STATES.  The  Constitution  adopted  in  convention  by  the  unani 
mous  consent  of  the  deputies  from  all  the  States  present, 
the  17th  day  of  September,  A.  D.  1787,  and  of  the  Inde 
pendence  of  the  United  States  of  America  the  twelfth ; 
the  following  States  being  represented : — New  Hamp 
shire,  Massachusetts,  Connecticut.  New  York,  New  Jersey, 
Pennsylvania,  Delaware,  Maryland,  Virginia,  North  Caro 
lina,  South  Carolina,  Georgia. 

STATES.  The  powers  not  delegated  to  the  United  States  by  the 
Constitution,  nor  prohibited  by  it  to  tho  States,  are  re- 


392 


INDEX. 


10 


11 


11 


served    to    the   States,  respectively,  or    to  the    people. 
Amendments  ........................................... 

See  this  power  discussed,  n.  269. 

STATES.  The  judicial  power  of  the  United  States  shall  not  be 
construed  to  extend  to  any  suit,  in  law  or  equity,  com 
menced  or  prosecuted  against  one  of  the  United  States  by 
citizens  of  another  State,  or  by  citizens  or  subjects  of  any 
foreign  State.  Amendments  ............................ 

STATES.  The  thirteenth  amendment  trenches  directly  upon  the 
powers  of  the  States  and  people,  n.  274,  p.  27&  It  has 
done  what  the  several  Slates  only  could  have  one,  n.  274, 
p.  276. 

STOCKTON,  JOHN  P.,  of  New  Jersey.  Ousted  from  his  seat  in  the 
Senate  because  of  the  mode  of  election,  n.  29,  p.  75. 

STOCKTON,  KICIIARD,  of  New  Jersey.  Signed  the  Declaration  of 
Independence,  p.  7. 

STONE,  THOMAS,  of  Maryland.  Signed  the  Declaration  of  Inde 
pendence,  p,  7. 

SUBJECTS.      The  judicial  power  shall  extend  to  all  cases  between 
a  State,  or  the  citizens  thereof,  and  foreign  States,  citizens, 
or  subjects  ........................................... 

(See  Judicial  Power,  n.  205«.) 

SUBJECTS  of  any  foreign  State.    The  judicial  power  of  the  United 
States  shall  not  be  construed  to  extend  to  any  suit  in  law 
or  equity,  commenced  or  prosecuted  against  one  of  the 
United  States,  by  citizens  of  another  State,  or  by  citizens 
or  subjects  of  any  foreign  State.    Amendments  .......... 

See  this  amendment  explained,  notes  205a,  271. 

SUFFRAGE.  No  State,  without  its  consent,  shall  be  deprived  of  its 
equal  suffrage  in  the  Senate  ...........................  . 

SUITS.     In  suits  at  common  law,  where  the  value  in  controversy 
shall  exceed  twenty  dollars,  the  right  of  trial   by  jury 
shall  be  preserved  ;  and  no  fact  tried  by  a  jury  shall  be 
otherwise  re-examined  in  any  court  of  the  United  States 
than  according  to  the  rules  of  the  common  law.     Amend 
ments  ................................................ 

See  notes  263,  265. 

SUITS.    The  judicial  power  of  the  United  States  shall  not  be  con 
strued  to  extend  to  any  suit,  in  law  or  equity,  commenced 
or  prosecuted  against  one.  of  the  United  Stales  by  citizens 
of  another  State,  or  by  citizens  or  subjects  of  any  foreign 
State.     Amendments  ......  ____  ,  ........................     11 

This  article  denned  and  discussed,  n  270. 

SUNDAYS  excepted.    Ten  days  allowed  the  President  to  return  a 

bill,  resolution,  &c  ......................................       1 

There  must  be  ten  entire  days,  n.  69. 

SUPPORT  the  Constitution.  The  senators  and  representatives 
before  mentioned,  and  the  members  of  the  several  State 
legislatures,  and  all  executive  and  judicial  officers,  both  of 
the  United  States  and  of  the  several  States,  shall  be  bound 
by  oath  or  affirmation  to  support  this  Constitution,  &c.  .  .  C 

And  to  swear  allegiance  to  the  government.  £c.  (see 
Tent  Oath),  n.  242.  Congress  has  the  right  to  snperadd  to 
the  oath,  Id. 

SUPRKME  COURT.   Congress  shall  have  power  to  constitute  tribunals 

inferior  to  the  Supreme  Court  .........................        1 

SITPRKME  COUKT.   (See  Appointment  of  Judge*  of,  &c.)  ...........       2 

SUPREME  COUKT.   The  judicial  power  of  the  United  States  shall  be 
vested  in  one  Supreme  Court,  and  in  such  inferior  courts 
as  the  Congress  may  from  time  to  time  ordain  and  estab 
lish.    The  judges,  both  of  the  Supreme  and  inferior  courts, 
shall  hold  their  offices  during  good  behavior,  and  shall,  at 
stated   times,  receive  for   their  services  a  compensation 
which  shall  not  be  diminished  during  their  continuance 
in  office  ...............  .................................      3 

Supreme  Court  defined,  n.  195,  p.  190.     It  has  original 
jurisdiction  in  but  two  classes  of  cases,  Id. 
COI:KT.     In  all  cases  affecting  ambassadors,  other  public 


Art.    set.    cl. 


pp. 

45,  269 


46, 2C9 


38,211 

46.  209 
40, 246 

45,  266 

46, 269 

27,91 


29,  124 
85,174 


36,  ISO 


INDEX. 


393 


2        2        3T,  204 


40,24T 


30,104 

81,149 
40,  246 


3i,ir>o 

23,67 


23,  67 

28,94 


Art.    sec.    cl.         pp. 

ministers,  and  consuls,  and  those  in  which  a  State  shall  be 

a  party,  the  Supreme  Court  shall  have  original  jurisdiction. 

In   all   the  other  cases  before   mentioned,  the   Supreme 

Court  shall  have  appellate  jurisdiction,  both  as  to  law  and 

fact,  with  such  exceptions,  and  under  such  regulations,  as 

the  Congress  shall  make 

Its   original  jurisdiction  is  exclusive,  n.   219.     Original 

jurisdiction  defined  and  discussed,  n.  219,  p.  205.    Appel 
late  jurisdiction  defined,  n.  211.     It  can  only  be  conferred 

by  Congress,  n.  211,  p.  207. 

SUPREME  'law  of  the  land.    (See  Constitution— Laws— Treaties.)      6  2 

8 WAYNE,  NOAH  11.    Associate  Justice  of   the  Supreme  Court, 

n.  197. 

TANEY,  ROGER  B.     Chief-Justice  of  the  Supreme  Court,  n.  197, 

p.  192. 
TAX.    A  tax  or  duty  on  imported  persons  (slaves)  might  have 

been  imposed  up  to  1808 1        9        1 

TAX.    No  capitatiou  or  other  direct  tax  shall  be  laid,  unless  in 

proportion  to  the  census  or  enumeration    hereinbefore 

directed  to  be  taken 194 

TAX.    No  amendment  made  prior  to  1SOS,  shall  in  any  manner 

affect  the  1st  and  4th  clauses  of  the  9th  section 5 

TAX.    No  tax  or  duty  shall  be  laid  on  articles  exported  from,  any 

State 1        9        5 

TAXED.   Indians  not  taxed  excluded  from  representative  numbers.       123 

Also  by  Article  XIV.  n.  275. 
TAXES,  direct,  defined,  notes  22,  144.     How  apportioned,  notes  93, 

94.    Tax«s  defined,  n.  72.     The  power  to  lay,  n.  73. 
TAXES.    Representative  and  direct  taxes  to  be  apportioned  among 

the  States  according  to  their  respective  numbers 128 

Direct  taxes,  see  n.  22. 

TAXES.     Congress  shall  have  power  to  lay  and  collect  taxes 1        8        1 

Taxes  under  this  power  defined  and  discussed,  notes  72, 

73.     It  is  co  extensive  with  the  territory  of  the  United 

States,  n.  73. 

TAYLOR,  GEORGE,  of  Pennsylvania.    Signed  Declaration  of  Inde 
pendence,  p.  7. 
TAYLOR,  JOHN  W.      Speaker  of  the  House  of   Representatives, 

n.  26. 

TAYLOR,  ZACIIARY.     President  of  the  United  States,  n.  166. 
TAZEWELL,  HENRY.    President  of  the  Senate,  pro  tempore,  n.  38, 

p.  78. 
TAZEWELL,  LITTLETON  W.    President  of  the  Senate,  pro  tempore* 

n.  38,  p.  80. 

TELFAIR,  EDWARD,  of  Georgia.    Signed  the  Articles  of  Confed 
eration,  p.  21. 
TENDER.    No  State  fhall  make  any  thing  but  gold  and  silver  coin  a 

tender  in  payment  of  debts 1      10        1        81,153 

Remarks  upon  this  clause,  n.  152.     Congress  may  make 

other  things  than  sold  and  silver  a  legal  tender,  notes  83, 

84,  97.  98,  99.  100,  155.     (See  Legal  Tender.) 
TENURE  of  office.  Of  military  officers  in  time  of  peace,  n.  184,  p.  179. 

Persons  holding  civil  offices,  how  removed,  Id.     With  the 

exception  of  secretaries,  n.  184.  p.  179,  §  1.     Power  of  the 

President  to  suspend  during  the  recess  of  the  Senate,  Id.  §  2. 

President  to  designate  some  person  to  perform  the  duties, 

Id.  If  the  Senate  refuse  to  concur.  Id.    The  President  may 

revoke  the  suspension.  Id.  p.  180.  The  President's  power  to 

till  vacancies  during  the  recess.  Id.   §  3.     And  if  not  con 
firmed,  office  to  remain  in  abeyance.  Id.     Tenure  not  to  be 

extended  beyond  the  term  limited  by  law,  n.  184.  p.  ISO, 

§  4.     Penalty  for  arcepting  office  contrary  to  law,  Id..  §  5. 

Penalty  for  removal  or  employment  contrary   to  law.  Id. 

§  6.     Fine  and  imprisonment,  Id.     Duty  of  the  secretary 

of  the  Senate  to  furnish  lists  of  the  rejected,  to  whom,  Id. 

§  7.     Duty  of  the  President  to  communicate  information 

of  appointment,  n.  1S4,  p.  181,  §  S.    No  payment  to  persons 


394 


INDEX. 


Art.    sec.    cl.       pp. 

appointed  contrary  to  the  act,  Id.  9.    All  vouchers  and 
payments  forbidden  under  penalty.  Id. 

TKRM  of  election  of    representatives  in  Congress — to  be  chosen 

every  two  years 1        2        1          22. 56 

TERM  of  ten  years.    The  census  shall  be  taken  within  every  term 

of  ten  years  subsequent  to  th<-  first 128          28.67 

TERM  of  citizenship  as  qualification  for  a  representative  in  Con 
gress — seven  years 122  28,66 

TERM  of  years.     Kepresentative  numbers  include  those  persons 

bound  to  service  tor  a  term  of  years 1        2        8          23,  C7 

TKRM  of  office  of  senators  in  Congress — to  be  chosen  for  six  years.       1        3        1          24,74 

TERM  of  citizenship  as  qualification  for  a  senator  in  Congress — nine 

years... 183          24,77 

TERM  of  office.  The  President  shall  hold  his  office  during  the 
term  of  four  years,  and  the  Vice-President  chosen  for  the 
same  term 211  23,162 

TERRITORIES.  The  organized  and  inchoate  States,  n.  231.  pp.  239, 
240.  Not  States  within  the  meaning  of  the  judicial  power 
and  the  judiciary  act,  n.  206.  p.  201.  Offenses  in  the  or 
ganized  Territories,  tried  therein,  n.  214.  Acts  of  authen 
tication  extended  to,  n.  219.  p.  222,  §  2.  The  act  is  con 
stitutional,  Id.  The  Territories  are  States  as  to  fugitive 
slaves,  n.  227,  p.  233.  .States  carved  out  of  Territories, 
n.  230.  They  are  States  within  the  guaranty  of  a  repub 
lican  form  of  government,  n.  233,  p.  242.  Their  judges  are 
not  constitutional,  but  removable,  n.  197.  The  same  duties 
must  be  paid  in  all  the  States  and  Territories,  n.  81.  Ab 
surdities  in  relation  to,  notes  231,  285. 

TEKRITORY.  Congress  shall  exercise  exclusive  legislation  over  all 
places  (or  territory)  acquired  for  public  purposes  by  ces 
sion  of  particular  States 1  8  17 

(See  District  of  Columbia,  n.  137.) 

TERRITORY.  The  Congress  shall  have  power  to  dispose  of  and 
make  all  needful  rules  and  regulations  respecting  the  ter 
ritory  or  other  property  belonging  to  the  United  States.  4  8  2 

Territory  critically  defined,  n.  231,  p.  238.  Applies  only 
to  property  held  at  the  time,  Id.  Not  to  future  ac 
quisitions,  "id.  p.  230.  Congress  may  punish  for  offenses 
within  the,  notes  91,  280.  The  Indian  country  remains  a 
part  of  the,  n.  281,  p.  280.  The  doctrine  of  power  as  to, 
Id.  p.  240.  Powers  denied,  Id.  The  Confederate 
States  Constitution  as  to,  n.  231,  pp.  240,  241.  §  2,  3.  "  And 
other  property  defined"  and  discussed,  n.  232.  'Of  Louisi 
ana,  Florida,  California,  New  Mexico,  as  to  their  inhabitants, 
n.  220.  pp.  233,  234,  §  3-7.  The  States  possess  the  power 
to  forbid  the  introduction  of  certain  persons  into  their 
territory,  n.  221,  p.  225.  Opposite  views  as  to  the  power 
over  slavery  in  the  "common  territory,"  n.  222,  p.  229. 
The  power  to  levy  taxes  is  co-extensive  with  the  territory 
of  the  United  States,  n.  73. 

TEST.    No  religious  test  shall  ever  be  required  as  a  qualification  to 

any  office  or  public  trust  under  the  United  States 6  8        40, 250 

In  what  sense  this  was  used.  n.  242,  p.  251. 

TEST  oath  required  by  the  act  of  1862,  n.  242,  p.  251.  Held  un 
constitutional  as  to  certain  attorneys,  notes  142, 143,  242. 

TESTIMONY.  No  person  shall  be  convicted  of  treason  unless  on  the 
testimony  of  two  witnesses  to  the  same  overt  act,  or  on 

confession  in  open  court 881        88,211 

(See  Treason,  n.  213.) 

THINGS.  No  warrants  shall  issue  but  upon  probable  cause,  sup 
ported  by  oath  or  affirmation,  and  particularly  describing 
the  place  to  be  searched,  and  the  persons  or  things  to  be 
seized.  Amendments 4  44,257 

THOMPSON,  SMITH.  Associate  Justice  of  the  Supreme  Court, 
H.  197,  p.  193. 

THREE-FIFTHS  of  all  other  persons  (slaves)  included  in  representa 
tive  numbers 1  2  8  23,67 

That  is,  two-fifths  of  the  slaves  were  excluded,  n.  24,  p.  68. 


INDEX, 


395 


pp. 

40,  240 
34,167 


31,152 
81,163 


Art.    sec.    cL 

TiiREE-ForrRTirs.  Amendments  to  the  Constitution  must  be  ratified 
by  the  legislatures  or  conventions  of  three-fourths  of  the 

States 5 

Differences  of  opinion  .as  to  what  are  three-fourths 
necessary  for  the  fourteenth  amendment,  n.  275. 

TIME  of  choosing  electors  may  be  determined  by  Congress 2        1        8 

TITLE  of  nobility.  No  title  of  nobility  shall  be  granted  by  the 
United  States ;  and  no  person  holding  any~office  of  profit 
or  trust  under  them,  snail,  without  the  consent  of  the 
Congress,  accept  of  any  present,  emolument,  office,  or 
title^  of  any  kind  whatever,  from  any  king,  prince,  or 
foreign  State 1  9  8 

TITLE  of  nobility.    No  State  shall  grant  any  title  of  nobility 1      10       1 

Title  of  nobility  defined,  n.  151. 

TODD,  THOMAS.  Associate  Justice  of  the  Supreme  Court,  n,  19T, 
p.  193. 

TOMPKINS,  DANIEL  D.    Vice-President,  n.  87,  p.  78. 

TONNAGE.     No  State  shall,  without  the  consent  of  Congress,  lay 

any  duty  of  tonnage 1      10        3        S2,l<51 

Tonnage  defined,  n.  163. 

TOOMBS,  ROBERT,  of  Ga.    Expelled  from  the  Senate,  n.  50. 

TRACY,  URIAH.  President  of  the  Senate,  pro  tempore,  n.  88, 
p,  78. 

TRAINING  the  militia  The  authority  of  training  the  militia  re 
served  to  the  States 1  8  16 

This  power  explained,  notes  134, 135. 

TRANQUILLITY.    Constitution  established  to  secure  domestic  tran- 

quiHty.    Preamble 

This  object  defined,  n.  9. 

TREASON.  For  treason  a  senator  or  representative  may  be  ar 
rested 161 

TREASON.  All  civil  officers  shall  be  removed  from  office  on  im 
peachment  for,  and  conviction  of,  treason,  &c. 2  4  1 

TREASON  against  the  United  States  shall  consist  only  in  levying 
war  against  them,  or  in  adhering  to  their  enemies,  giving 
them  aid  and  comfort.  No  person  shall  be  convicted  of 
treason  unless  on  the  testimony  of  two  witnesses  to  the 

same  overt  act,  or  on  confession  in  open  court 8        3        1 

Treason  at  common  law  defined,  n.  215.  Only  defined, 
Id.  The  levying  war  may  be  under  the  authority  of  State 
governments  or'confederacy  of  States,  Id.  p  211. 

TREASON.  The  Congress  shall  have  power  to  declare  the  punish 
ment  of  treason,  but  no  attainder  of  treason  shall  work  cor 
ruption  of  blood  or  forfeiture,  except  during  the  life  of 

the  person  attainted 332 

Punishment  defined  find  acts  of  Congress  quoted,  n.  217. 

TREASON.  A  person  charged  with  treason,  and  fleeing  from  one 
State  to  another,  to  be  delivered  up,  on  demand,  to  the 
State  having  jurisdiction 4  2  2 

TREASURY.  The  senators  and  representatives  shall  receive  a 
compensation  for  their  services,  to  be  ascertained  by  law, 
and  paid  out  of  the  Treasury  of  the  United  States 161 

TREASURY.  No  money  shall  be  drawn  from  the  Treasury,  but  in 
consequence  of  appropriations  made  by  law  ;  and  a  regu 
lar  statement  and  account  of  the  receipts  and  expendi 
tures  of  all  public  money  shall  be  published  from  time  to 
time 1  9  7 

TKKASURY  of  the  United  States.    The  net  produce  of  all  duties 
and  imposts,  laid  by  any  State  on  imports  or  exports, 
shall  be  for  the  use  of  the  Treasury  of  the  United  States..      1      10        2 
(See  Secretary  of  the  Treasury,  n.  184.) 

TREATIES.  The  President  shall  have  power,  by  and  with  the 
advice  and  const  nt  of  the  Senate,  to  make  treaties,  pro 
vided  two-thirds  of  the  senators  present  concur 222  85,174 

Treaty  defined,  n.  178.  p.  175,  and  note  240.  They  are 
contracts,  Id.  Their  interpretation  is  often  political, 
notes  178, 199.  The  advice  of  the  Senate,  how  obtained, 
n.  17S. 


29, 135 
22,58 

26,83 

86,185 

88,  211 

88,213 

88,229 
26,88 


396 


INDEX. 


TREATIES.    The  judicial  power  shall  extend  to  all  cases  in  law  and 
equity  arising  under  this  Constitution,  the  laws  of  the 
United  States,  and  the  treaties  made,  or  which  shall  be 
made,  under  their  authority  ............................. 

This  subject  critically  considered,  n.  199,  p.  195. 

TREATIES.     All  treaties  made,  or  which  shall  be  made,  under  the 
authority  of  the  United  States,  shall  be  the  supr.  me  law 
of  the  land  ...................    ........................ 

Treaties  defined,  notes  178,  240.     How  far  it  binds  the 
nation  and  is  repealable,  n.  240. 

TKKATY.    No  State  shall  enter  into  any  treaty.  .  .  ................. 

Because  it  is  a  national  power,  n.  152.    Treaty  defined, 
notes  178,  199.  240. 

TRIAL.  A  partv  convicted  on  an  impeachment  shall  nevertheless 
be  liable  and  subject  to  indictment,  trial,  judgment,  and 
punishment,  according  to  law  ........................... 

TRIAL  by  jury.     The  trial  of  all  crimes,  except  in  cases  of  im 
peachment,  shall  be  by  jury,  and  such  trial  shall  be  held 
in  the  State  where  the  said  crimes  shall  have  been  com 
mitted;  but  when  not  committed  within  any  State,  the 
trial  shall  be  at  euch  place  or  places  as  the  Congress  may 
by  law  direct  ...................................  ..  ____  .. 

(See  Crimes—  Jury,  notes  213,  215.)  Trial  defined,  n.  213, 
p.  209. 

TRIAL.  In  all  criminal  prosecutions,  the  accused  shah  enjoy  the 
right  to  a  speedy  and  public  trial,  by  an  impartial  jury  of 
the  State  and  district  wherein  the  crime  shall  have  been 
committed,  which  district  shall  have  been  j>reviously  as 
certained  by  law.  Amendments  ......................... 

TEIAL  by  jury.     In  suits  at  common  law,  where  the  value  in  con 
troversy  shall  exceed  twenty  dollars,  the  right  of  trial  by 
jury  shall  be  preserved  ;  and  no  fact  tried  by  a  jury  shall 
be   otherwise  re-examined  in  any  court  of  the  United 
States.    Amendments  ................................... 

(See  Common  Law,  n.  263.) 

TRIBUNALS.     Congress  shall  have  power  to  constitute  tribunals  in 
ferior  to  the  Supreme  Court  ............................. 

The  tribunals  which  have  been  established  under  this 
section,  n.  109. 
When  the  President  of  the  United  States  is  tried  on  an 


Art. 


TRIED. 
TRIED. 


impeachment,  the  chief-justice  shall  preside  ............. 

"Twice   in    jeopardy,"  means  that  a  party   shall  not  bo 

tried  a  second  time,  n.  255. 
TRIMBLE,  EGBERT.    Associate  Justice  of  the  Supreme  Court,  n. 

197,  p.  193. 
TKOOPS.     No  State  shall,  without  the  consent  of  Congress,  lay  any 

duty  of  tonnage,  or  keep  troops  or  ships  of  war,  in  time 


of  peace 
Tr 


roops  defined,  n.  164. 

TRUMBULL,  JONATHAN.  Speaker  of  the  House  of  Representatives, 
n.  26. 

TRUST.  Judgment,  in  cases  of  impeachment,  shall  not  extend 
further  than  removal  from  office,  and  disqualification  to 
hold  an  enjoy  any  office  of  honor,  trust,  or  profit  under 
the  United  States  ...................................... 

TRUST.  No  person  holding  an  office  of  trust  or  profit  under  the 
United  States  shall  be  appointed  an  elector  ............. 

TRUST.  No  n-ligious  test  shall  ever  be  required  as  a  qualifi 
cation  to  any  office  or  public  trust  under  the  United 
States  ................................................. 

TRY  all  impeachments.    The  Senate  shall  have  the  sole  power  to 
trv  all  impeachments  ................................... 

(See  note  40.) 

TWENTY  dollars.     In  suits  at  common  law,  when  the  value  in  con 
troversy  shall  exceed  twenty  dollars,  the  rkht  of  trial  by 
jury  shall  be  preserved.     Amendments  ....  .............. 

(See  Common  Law,  n.  263.) 

TWO-THIRDS.    No  person  shall  bo  convicted  by  the  Senate  on  an 


sec.     cl.        pp. 

2  1        87,  If  4 

2        40, 247 
10        1        31, 153 

3  7          2^82 
2        3        37  209 

44  26* 

45  2f,fi 
8        9        29  124 

36          2{   8' 
10        3        82,  If 


3        7          25,  Si 
1        2        32,  164 

3        40, 250 
8        6         25, 81 

45, 266 


INDEX. 


397 


Art.    sec.     cl.         pp. 

Impeachment  without  the  concurrence  of  two-thirds  of 
the  members  present 1        3        6          25.81 

TWO-THIRDS.    Each  house  of  Congress  may,  by  the  concurrence  of 

two-thirds,  expel  a  member 1        5        2          26, 86 

TWO-THIRDS.  A  bill  returned  with  objections  by  the  President,  may 
be  passed  bv  two-thirds  of  both  houses  of  Congress,  and 
become  a  law 1  7  2  27,91 

TWO-THIRDS.  Any  order,  resolution,  or  vote,  to  which  the  concur 
rence  of  the  Senate  and  House  of  Representatives  may  be 
necessary  (except  on  a  question  of  adjournment),  and  re 
turned  with  objections  by  the  President,  may  be  re- 
passed  by  two-thirds  of  both  houses  of  Congress 1  7  8  28, 93 

TWO-THIRDS.  The  President  shall  have  power,  by  and  with  the 
advice  and  consent  of  the  Senate,  to  make  treaties,  pro 
vided  two- thirds  of  the  senators  present  concur 2  2  2  35, 174 

TWO-THIRDS.  The  Congress,  whenever  two-thirds  of  both  houses 
shall  deem  it  necessary,  shall  propose  amendments  to  this 
Constitution 5  40,248 

TWO-THIRDS.  On  the  application  of  the  legislatures  of  two-thirds 
of  the  several  States,  Congress  shall  call  a  convention  for 
proposing  amendments  to  the  Constitution 5  40, 240 

TWO-THIRDS.  A  quorum  (of  the  House  of  Representatives  for  tho 
election  of  President.)  shall  consist  of  a  member  or  mem 
bers  from-two -thirds  of  the  States,  and  a  majority  of  all 
the  States  shall  be  necessary  to  a  choice.  Amend 
ments 12  1  47,166 

TWO-THIRDS.  A  quorum  (for  the  election  of  Vice-President  bv  the 
Senate)  shall  consist  of  two-thirds  of  the  whole  number  of 
senators,  and  a  majority  of  the  whole  number  shall  be 
necessary  to  a  choice.  Amendments 12  1  47,160 

TYLER,  JOHN.    Vice-President,  n.  37.    And  President,  n.  166. 

UNIFORM.      All  duties,   imports,   and  excises,   shall  be  uniform 

throughout  the  United  States 181          28,94 

Taxes  must  be  uniform,  under  this  clause  ;  but  need  r.ot 

be  apportioned   according  to   the  census,  n.   81,   p.  102. 

Uniform  denned,  Id. 
UNIFORM.     Congress  shall  have  power  to  establish  an  uniform  rule 

of  naturalization,  and   uniform   laws  on   the    subject  of 

bankruptcies,  throughout  the  United  States 1        8        4        28, 112 

To  be  uniform  the  power  must  be  exclusive,  n.  93. 
UNION.     The  doctrines  of  nullification  in  regard  to,  Pref.  p.  vii.    It 

has  the  inherent  powers  to  make  it  perpetual,  Pref.  p.  viii. 

Secession  tested  its  strength,  Id.  xi.  Effect  of  secession  upon 

governments  firm  to  the  Union,  Pref.  p.  xii.   The  principle 

upon  which  West  Virginia  was  admitted  into  the  Union, 

Id.  and  note  235.     The  security  in  the  hands  of  the  law- 
making  power,  Pref.  p.  xiii.,  notes  46.  233,  242,  276.  286. 

Its  firm  basis,  n.  286.     Articles  of  Confederation  and  per 
petual  union,  p.  9. 
UNION.     The  Constitution  established  in  order  to  form  a  more 

perfect  union.      Preamble 22, 58 

That  is  to  make  it  stronger,  n.  7. 
UNION.     Representatives  and  direct  taxes  shall   be  apportioned 

among  the  several  States  which  may  be  included  within 

this  Union,  according  to  their  respective  numbers.  &c 1        2        8          23,  67 

UNION.  The  President  shall,  from  time  to  time,  give  to  the  Congress 

information  of  the  state  of  the  Union,  and  recommend  to 

their    consideration   such   measures    as    he    shall    judge 

necessarv  and  expedient 2        3        1        86. 183 

UNION.    New  States  may  be  admitted  by  the  Congress  into  this 

Union : 431        89,244 

See  a  list,  and  the  dates  of  the  admission  of  new  States, 

n.  230. 
UMON.    The  United  States  shall  guarantee  to  every  State  in  the 

Union  a  republican  form  of  government 441        89,242 

This  guaranty  extends  to  Territories  as  well  as  States, 

n.288. 


398 

Art.    sec.    cl.       pp. 

UNITED  STATES.  Declaration  of  Independence  sent  to  each  of  the, 
p.  8.  Formed  Articles  of  Confederation,  pp.  8,  9.  Style  of  the 
"  United  States  of  America,"  Art.  I.  p.  9.  Inhibitions 
upon  the  States  without  the  consent  of,  Arts.  VI.  pp.  11, 
12,  13.  Expenses  of  war  to  be  borne  by.  Art.  VIII.  p.  18. 
Power  and  jurisdiction  under  the  Confederation.  Ait.  IX. 
pp.  14-19.  Committee  of  the  States  might  exercise  the 
powers  of,  during  recess,  Art.  X.  p.  19.  Canada  might  be 
admitted  into  the,  Art.  X.  p.  19.  To  be  liable  for  bills  of 
credit  issued  by  Congress,  Art.  XII.  p.  19.  The  States  to 
abide  by  the  determination  of,  Art.  XIII.  p.  20. 
UNITED  STATES,  or  government  of  the  United  States.  We  the 
people  of  the  United  States,  &c.,  do  ordain  and  establish 
this  Constitution  for  the  United  States  of  America. 

Preamble 22,53 

(See  America — Government — People,  notes  1-18.) 
UNITED  STATKS.     All  legislative  powers  herein  granted  shall  be 

vested  in  a  Congress  of  the  United  States Ill          22,58 

(See  Legislative  Power,  notes  14,  15.) 

UNITED  STATKS.  No  person  shall  be  a  representative  who  shall 
not  have  attained  the  age  of  twenty-five  years,  and  been 

seven  years  a  citizen  of  the  United  States 122          23,66 

(See  Qualifications,  notes  19,  20,  46.) 

UNITED  STATKS.  The  Senate  of  the  United  States  shall  be  com 
posed  of  two  senators  from  each  State 131  24,74 

(See  Senators,  n.  28.) 

UNITED  STATES.  No  person  shall  be  a  senator  who  shall  not  have 
attained  to  the  age  of  thirty  years,  and  been  nine  years  a 

citizen  of  the  United  States.... 133         24,74 

(See  Qualifications,  notes  35,  46.) 

UNITED  STATES.  Judgment  in  cases  of  impeachment  shall  not  ex 
tend  further  than  to  removal  from  office,  and  disqualifica 
tion  to  hold  and  enjoy  any  office  of  honor,  trust,  or  profit, 

under  the  United  States 1        3        7          25,82 

Doubtful  if  it  can  be  less.    (See  Impeachment,  n.  40.) 
UNITED  STATES.    The  senators  and  representatives  shall  receive  a 
compensation  for  their  services,  to  be  ascertained  by  law, 

and  i .aid  out  of  the  treasury  of  the  United  States 1        6        1          26,  83 

(See  Compensation.) 

UNITED  STATKS.  No  senator  or  representative  shall,  during  the 
time  for  which  he  was  elected,  be  appointed  to  any  civil 
office  under  the  authority  of  the  United  States,  which  shall 
have  been  created,  or  the  emoluments  whereof  shall  have 
been  increased,  during  such  time;  and  no  person  holding 
any  office  under  the  United  States  shall  be  a  member  of 

either  house  during  his  continuance  in  office 1        6        2          27,90 

(See  Office*,  n.  63.) 
UNITED  STATKS.     Congress  shall   have  power  to  provide  for  the 

common  defense  and  general  welfare  of  the  United  States.       181          28,  94 

(See   Common,  Defence  and   General    Welfare,  notes 
9,  79,  80.) 
UNITED  STATES.     All  duties,  imposts,  and  excises  shall  be  uniform 

throughout  the  United  States 1        S        1          28,94 

(See  Duties,  notes  81,  144.) 

UNITED  STATES.  Congress  shall  have  power  to  establish  an  uniform 
rule  of  naturalization,  and  uniform  laws  on  the  subject  of 

bankruptcies  throughout  the  United  States 1        8        4        29, 112 

(See  Naturalization — Bankruptcies,  notes  93-96.)    As 
to  the  effect  of  naturalization,  see  n.  274. 

UNITED  STATKS.  Congress  shall  have  power  to  provide  for  the 
punishment  of  counterfeiting  the  securities  and  current 

coin  of  the  United  Suites.... 1        S        6        29,118 

(See  Counterfeiting,  n.  103.) 
UNITED  STATKS.     Establishment  of  tlu.'  seat  of  government  of  the 

United  States 1        8      17        30,136 

(See  District  of  Columbia— Forts— Arsenals,  notes  136, 
137.) 
UNITED  STATES.  Congress  shall  have  power  to  make  all  laws  which 


ItfDEX. 


Art.    sec.    cl.        pp. 

shall  be  necessary  atfft  proper  for  carrying  into  execution 
the  foresoing  powers,  and  all  other  powers  vested  by  this 
Constitution  in  the  government  of  the  United  States,  or 

in  any  detriment  <  r^office  thereof 1        8      IS        80, 133 

(See  Laws— Powers,  notes  138,  268,  269,  274. 
UNITED  STATES.  No  title  of  nobility  shall  be  grunted  by  the  United 

States 1        9        8        31,152 

(Sec  Nobility,  notes  150,  151.) 
UMTKP  STATES  Treasury.    (See  Treasury.) 

UNITED  STATES.  No  State  shall,  without  the  consent  of  Congress, 
lay  any  imposts  or  duties  on  imports  or  exports,  except 
what  may  be  absolutely  necessary  for  executing  its  inspec 
tion  laws,  and  the  net  produce  of  all  duties  and  imposts 
laid  by  any  State  on  imports  or  exports  shall  be  for  the 
use  of  the  Treasury  of  the  United  States,  and  all  such  laws 
shall  be  subject  to  the  revision  and  control  of  the  Con 
gress 1  10  2  32,161 

(See  States— Duties— Imposts,  notes  162-165.) 
For  these  inhibitions  see  the  Articles  of  Confederation, 
Art.  VI.  pp.  11-13. 

UNITED  STATES.  The  executive  power  shall  be  vested  in  a  Presi 
dent  of  the  United  States  of  America. 211  82,162 

(See  Executive  Power,  n.  165.)  List  of  Presidents,  n.166. 

UNITED  STATES.     No  senator  or  representative,  or  person  holding 

an  office  of  trust  or  profit  under  the  United  States,  shall  be 

r>ppoi  n  ted  an  elector  of  President  and  Vice-President 212        82,16-4 

UNITED  STATES.     The  time  of  choosing  electors  shall  be  the  same 

throughout  the  United  States 213        84,167 

Time  fixed,  n.  16Sc. 

UNITED  States.  No  person  except  a  natural  born  citizen,  or  citizen 
of  theUnited  States  at  the  time  of  the  adoption  of  tha 
Constituton,  nor  unless  he  shall  have  attained  the  age  of 
thirty-five  vears,  and  been  fourteen  years  a  resident  of  the 

United  States,  shall  be  President  of  the,  United  Statvs 214        34,169 

(See  Qualification,  n.  170.) 

UNITED  STATES.  The  President  shall  be  commander-in-chief  of  the 
army  and  navy  of  the  United  States,  and  of  the  militia  of 
the  several  States,  when  called  into  actual  service  of  the 

United  States 221        35,171 

(See  Commander -in- Chief,  n.  175.) 

UNITED  STATES.  The  President  shall  have  power  to  grant  reprieves 
and  pardons  for  offenses  against  the  United  States,  except 

in  cases  of  impeachment 221        35,171 

(See  Reprieves— Pardons,  n.  177.) 

UNITED  STATES.  The  President  shall  nominate,  and,  by  and  with 
the  advice  and  consent  of  the  Senate,  appoint  officers  of 
the  United  States,  whose  appointments  are  not  herein 
otherwise  provided  for,  and  which  shall  be  established  by 

law . 2        2        2        85,174 

(See  Appointments,  notes  179-184 :    Tenure  of  Office, 
n.  184.) 
UNITED  STATES.  The  President  shall  commission  all  officers  of  the 

UnitedStates 2        3  86,183 

(See  Commission,  n.  190.) 

UNITED  STATES.  The  President,  Vice-President,  and  all  civil 
officers  of  the  United  States,  shall  be  removed  from  office 
on  impeachment  for,  and  conviction  of,  treason,  bribery,  or 

other  high  crimes  and  misdemeanors 2        4  86,185 

(See  Iinpeachment,  notes  192-194.) 

UNITED  STATES.  The  judical  power  of  the  United  States,  shall  be 
vested  in  one'  Supreme  Court,  and  in  such  inferior  courts 
as  the  Congress  may  from  time  to  time  ordain  and  estab 
lish : 3  1  86,189 

(See  Judicial  Power,  notes  19.5-198.) 

UNITEDSTATES.  The  judicial  power  shall  extend  to  all  contro 
versies  to  which  the  United  States  shall  be  a  party 8  2  1  87, 194 

UNITED  STATES.  The  judicial  power  shall  extend  to  all  cases  in 
law  and  equity,  arising  under  this  Constitution,  the  laws 


400 


INDEX. 


Art.    aec.    cl.       pp. 

of  the  United  States,  and  treaties  made,  or  which  shall  be 

made,  under  their  authority 3        2        1        87,194 

See  (Judicial  Power,  notes  199-209.) 
UNITED  STATES.    Treason  against  the  United  States  shall  consist 

onl}r  in  levying  war  against  them,  or  in  adhering  to  their 

enemies,  giving  them  aid  and  comfort 3        3        1        33,211 

(See  Treason,  notes  2 11-2 14.) 
UNITED  STATES.     The  Congress  shall  have  power  to  dispose  of  and 

make  all  needful  rules  and  regulations  respecting  the  ter 
ritory  or  other  property  belonging  to  the  United  States; 

and  nothing  in  this  Constitution  shall  be  so  construed  as 

to  prejudice  any  claims  of  the  United  States,  or  of  any 

particular  State 482        39,238 

(See  Territories,  notes  231,  232.) 
UNITED  STATES.  The  United  States  shall  guarantee  to  every  State 

in  this  Union  a  republican  form  of  government,  and  shall 

protect  each  of  them  against  invasion;  and  on  application 

of  the  legislature,  or  of  the  executive  (when  the  legisla 
ture  cannot  be  convened),  against  domestic  violence 4        4  89,242 

(See  Guaranty — " Republican  form  of  Government" 

n. '233.    Invasion,  n.  234.     Domestic.  Violence,  n.  235.) 
UNITED  STATES.     All  debts  contracted,  and  engagements  entered 

into,  before  the  adoption  of  this  Constitution,  shall  be  as 

valid  against  the  United  States  under  this  Constitution  as 

under  the  Confederation 6  1        40, 24T 

(See  Debts,  n.  237.) 
UNITKD  STATES.     This  Constitution,  and  the  laws  of  the   United 

States  which   shall  be  made  in  pursuance  thereof,  and  all 

treaties  made,  or  which  shall  be  made,  under  the  authority 

of  the  United  States,  shall  be  the  supreme  law  of  the  land.      C  2        40,247 

See  the  article  defined  and  discussed,  notes  28S.  241. 
UNITED  STATES.     The  senators  and  representatives  before    men 
tioned,  and  the  members  of  the  several  State  legislatures, 

and  all  executive  and  judicial  officers,  both  of  the  United 

States  and  of  the  several  States,  shall  be  bound  by  oath  or 

affirmation,  to  support  this  Constitution  ;  but  no  religious 

test  shall  ever  be  required  as  a  qualification  to  any  office 

or  public  trust  under  the  United  States  6  8        41,250 

(See  Oath,  n.  242.) 
UNITED  STATUS  Court.  In  suits  at  common  law,  where  the  value  in 

controversy  shall  exceed  twenty  dollars,  the  right  of  trial 

by  jury  shall  be  preserved;  and  no  fact  tried  by  a  jury 

shall  be  otherwise  re-examined  in  any  court  of  the  United 

States  than  according  to  the  rules  of   the  common  law. 

Amendments 7  45,266 

See  this  article  discussed,  notes  263-265,  and  n.  205«. 
UNITED  STATES.     The  powers  not  delegated  to  the  United  States 

by  the  Constitution,  nor  prohibited  by  it  to  the  States,  are 

reserved  to   the   States,   respectively,   or  to  the  people. 

Amendments 10  45,269 

(See  Powers,  notes  138,  209,  274.) 
UNITED  STATES.  The  judicial  power  of  the  United  States  shall  not 

be  construed  to  extend  to  any  suit  in  law  or  equity  com 
menced  or  prosecuted  against  one  of  the  United  States  by 

citizens  of  another  State,  or  by  citizens  or  subjects  of  any 

foreign  State.     Amendments 11  46,269 

(See  Law  and  Equity,  notes  270.  2T2,  and  n.  205a.) 
UNITED  STATES.     The  list  of  votes  for  President  and  Vice  Presi 
dent  shall  be  transmitted  to  the  seat  of  the  government 

of  the  United  States.     Amendments  12  46.164 

UNITKD  STATKS.  Neither  slavery  nor  involuntary  servitude,  except 

as  a  punishment  for  crime,  whereof  the  party  shall  have 

Wen  duly  convicted.  shall  exist  within  the  United  States 

or  any  pfaje  subject  to  llu-ir  juri.-diotion.     Amendments..     13         1  48,271 

(See  Citizen* — Slavery,  n.  174.) 
U«ITEL»  STATES.     AH  persons  born  or  naturalized   in  the  United 

States,  and  subject  to  the  jurisdiction  thereof,  are  citizens 

of  the  United  States  and  of  the  State  wherein  they  reside. 


INDEX.  401 

Art.    sec.    cl.          pp. 

No  State  shall  make  or  enforce  any  lavr  which  shall 
abridge  the  privileges  or  immunities  of  citizens  of  the 
United  States;  nor  shall  any  State  deprive  any  person  of 
life,  liberty,  or  property  without  due  process  of  law,  nor 
deny  to  any  person  within  its  jurisdiction  the  equal  pro 
tection  of  the  laws.  Amendments 14  1  48,279 

(See  Citisens— Naturalization— Slavery,  n.  274.) 
UNITED  STATES.  Representatives  shall  be  apportioned  among  the 
several  States  according  to  their  respective  numbers, 
count'ng  the  whole  number  of  persons  in  each  State, 
excluding  Indians  not  taxed.  But  when  the  right  to 
vote  at  any  election  for  the  choice  of  electors  for  Presi 
dent  and  Vice- President  of  the  United  States,  representa 
tives  in  Congress,  the  executive  and  judicial  officers  of 
a  State,  or  the  members  of  the  legislature  thereof,  is 
denied  to  any  of  the  male  inhabitants  of  such  State, 
being  twenty  one  years  of  age,  and  citizens  of  the  United 
States,  or  in  any  way  abridged,  except  for  participation  in 
rebellion  or  other  crime,  the  basis  of  representation 
therein  shall  be  reduced  in  the  proportion  which  the 
number  of  such  male  citizens  shall  bear  to  the  whole 
number  of  male  citizens  twenty -one  years  of  age  in  such 
State.  Amendments 14  2  48,279 

See  notes  276-277. 

UNITED  STATES.  No  person  shall  be  a  senator  or  representative 
in  Congress,  or  elector  of  Presi-ient  and  Vice-President, 
or  hold  any  office,  civil  or  military,  under  the  United 
States,  or  under  any  State,  who,  having  previously  taken 
an  oath,  as  a  member  of  Congress,  or  as  any  officer  of  the 
United  States,  or  as  a  member  of  any  State  legislature,  or 
as  an  executive  or  judicial  officer  of  any  State,  to  support 
the  Constitution  of  the  United  States,  bhall  have  engaged 
in  insurrection  or  rebellion  against  the  same,  or  given  aid 
or  comfort  to  the  enemies  thereof.  But  Congress  may.  by 
•  vote  of  two-thirds  of  each  house,  remove  such  disability. 
Amendments 14  3  49,279 

Sec  this  section  discussed,  n.  281. 

UNITED  STATES.  The  validity  of  public  debt  of  the  United  States, 
authorized  by  law,  including  debts  incurred  for  payment 
of  pensions  and  bounties  for  services  in  suppressing  insur 
rection  or  rebellion  shall  not  be  questioned.  But  neither  the 
United  States  nor  any  State  shall  assume  or  pay  any  debt 
or  obligation  incurred  in  aid  of  insurrection  or  rebellion 
against  the  United  States,  or  any  claim  for  the  loss  or 
emancipation  of  any  slave  ;  but  all  such  debts,  obligations, 
and  claims  shall  be  held  illegal  and  void.  Amendments..  14  4  49,280 

See  this  discussed,  n.  282. 

UNUSUAL  punishments.  Excessive  bail  shall  nor,  be  required  nor 
excessive  fines  imposed,  nor  cruel  and  unusual  punish 
ments  inflicted.  Amendments 8  45, 26 

(See  Sail— Fines,  notes  266,  267.) 

VACANCIES.  When  vacancies  happen  in  the  representation  from 
any  State,  the  executive  thereof  shall  issue  writs  of  elec 
tion  to  fill  them 1  2  4  23,  72 

Action  of  the  executive;  how  vacancies  are  created; 
acceptance  of  an  incompatible  office  on  absolute  determi 
nation  of  the  first,  n.  25. 

VACANCIES.  If  vacancies  happen,  by  resignation  or  otherwise,  in 
the  seats  of  senators,  during  the  recess  of  the  legislature  of 
any  State,  the  executive  thereof  may  make  temporary  ap 
pointments,  until  the  next  meeting  of  the  legislatures, 

which  shall  then  fill  such  vacancies 1        3        2          24, 76 

In  what  manner  vacated,  11.  32.  The  executive  cannot 
fill  a  prospective  vacancy,  n.  83. 

VACANCIES.  The  President  shall  have  power  to  fill  up  all  vacan 
cies  that  may  happen  during  the  rucc&s  of  the  Senate,  by 


402 


INDEX. 


Art.  sec.      cl.       pp. 
granting  commissions  which  shall  expire  at  the  end  of 

their  next  session 223        30,182 

This  clause  discussed;  various  opinions;  how  the 
vacancy  may  occur  ;  ''that  may  happen  "  defined;  limi 
tation  of  the  power ;  may  act  on  the  neglect  of  the 
Senate,  n.  185.  Length  of  the  commission ;  the  concur 
rence  of  the  Senate  at  the  expiration  of  former  commis 
sion  makes  a  uew  appointment,  n.  186. 

VALIDITY  of  contracts  or  engagements.  All  debts  contracted,  and 
engagements  entered  "into,  before  the  adoption  of  this 
Constitution,  shall  be  as  valid  against  the  United  States 

under  this  Constitution,  as  under  the  Confederation 6  1        40, 247 

A  principle  of  moral  obligation,  n.  237. 
VALUE.     Congress  shall  have  power  to  coin  money,  regulate  the 

value  thereof,  and  of  foreign  coin 185        29,114 

"  To  coin  "  denned  ;  a  treasury  note  only  a  promise  to 
pay  money;  "currency"  is  not  "money;"  a  contract 
satisfied  by  payment  o'f  legal  tender,  n.  97.  "Money" 
defined  ;  coin  has  no  pledge  of  redemption,  n.  98.  Regu- 
late  the  value  defined;  vested  exclusively  in  Congress, 
n.  99.  Restrictions  as  to  legal  tender  ;  intrinsic  valuo  of  no 
consequence,  n.  100. 

VALUE  in  controversy.  In  suits  at  common  law,  when  the  valuo 
in  controversy  shall  exceed  twenty  dollars,  the  right  of 

trial  by  jury  shall  be  preserved,  &c.     Amendments 7  45,  266 

"  Suits  at  common  law "  defined ;  limitation  of  the 
phrase;  "common  law"  defined;  trial  by  jury,  for 
whose  benefit,  n.  263. 

VAN  BTTREN,  MARTIN.    President  of  the  United  States,  n.  166. 
VAN  DVKK,   NICHOLAS,  of  Delaware.     Signed  Articles  of  Confed 
eration,  p.  21. 

VARNUM,  JOSEPH  B.  Speaker  of  the  House  of  Representatives, 
n.  26.  And  President  of  the  Senate,  pro  tentpore,  n.  38, 
p.  79. 

VERMONT.  Qualifications  for  suffrage  in,  n.  17.  Number  of  repre 
sentatives,  n.  24.  Population  in  each  decade,  n.  24,  pp. 
69.  70.  Assigned  to  second  judicial  circuit,  n.  197.  Ad 
mitted  into  the  Union,  n.  '250.  Ratified  the  thirteenth 
amendment,  n.  274;  the  fourteenth,  n.  275. 

VESSSLS.  No  preference  shall  be  given  by  any  regulation  of 
commerce  or  revenue  to  the  ports  of  one  State  over  those 
of  another;  nor  shall  vessels  bound  to  or  from  one  State 

be  obliged  to  enter,  clear,  or  pay  duties  in  another 1        9        6        81, 151 

"Preference"  defined,  n.  147.  The  coasting  trade, 
n.  148. 

VEST.  Congress  may  by  law  vest  the  appointment  of  such 
inferior  offices  as  they  think  proper  in  the  President 
alone,  in  the  courts  of  law,  or  in  the  heads  of  depart 
ments 2  2  85,174 

Clerks  of  court  and  commissioners  of  bail  are  such  offi 
cers,  n.  183. 

VESTED  in  the  government.  Congress  shall  have  power  to  make  all 
laws  which  shall  be  necessary  and  proper  for  carrying  into 
execution  the  foregoing  powers,  and  all  other  powers 
vested  by  this  Constitution  in  the  government  of  the 

United  States,  or  in  any  department  or  office  thereof 1        8      18        80, 138 

"  Necessary1'  defined  ;  not  synonymous  with  "  absolutely 

necessary;"  Congress  must  judge  of  the  means  to  effect 

the  end;  "power"  defined,  full  import  of   the   clause; 

"proper"  defined  ;  incidental  powers,  n.  138,  p.  139. 

VESTED  in  a  President.     The  executive  power  shall  be  vested  In  a 

President  of  the  United  States  of  America 211        82,162 

Object  of  an  executive  department ;  definition  and 
limitation  of  executive  power,  n.  165.  List  of  Presidents, 

'(See  President.) 

VESTED  in  one  Supreme  Court  The  judicial  power  of  the  United 
States  shall  be  Tested  in  one  Supreme  Court,  and  in  such 


INDEX. 


403 


Art.    sec.    cl. 


Inferior  courts  as  the  Congress  may  from  time  to  time 

ordain  and  establish  .......  .',  ............................       31 

"Judicial   power"     defined   and   discussed;  "shall  be 
vested"  defined;    divisions  of  power;    Supreme   Court 
defined,  n.  195.     Inferior  courts,  n.  196.     List  of  Justices 
of  the  Supreme  Court,  n.  197,  pp.  191-194. 

(See  Supreme  Court.) 

VESTED  in  a  Congress.     All  legislative  powers  herein  granted  shall 
be  vested  in  a  Congres's  of  the  United  States,  which  shall 
consist  of  a  Senate  and  a  House  of  Representatives  .......       Il 

''Legislative  power"  defined,  n.  14.  Congress  defined  ; 
the  division  of  Congress  discussed,  n.  15. 

VESTED  rights.  (See  Contract,  notes  152-160.  See  Senate,  and 
House  of  Representatives.) 

VETO  power  of  the  President.     (Ace  President.)  ..................       17 

"Veto  power"  defined;  objects  of;  infrequency  of  use 
in  former  times;  President  Jackson's  vetoes  ;  President 
Folk's  vetoes;  President  Johnson's  vetoes;  uFreedman13 
Bureau  Bill  "  successfully  vetoed.;  "Civil  Eights  Bill"  and 
Reconstruction  acts  vetoed,  n.  67,  p.  92.  President  John 
son's  opinion  as  to  unconstitutionulity  of  the  various 
vetoed  acts  ;  "  two-thirds  defined  ;  decision  of  the  Senate 
on  a  "  quorum,"  n.  68.  The  President  must  receive  the 
bill  ten  entire  days  before  adjournment,  or  else  it  does  not 
become  law,  n.  69. 

VICE-PRESIDENT  shall  have  no  vote  in  the  Senate  unless  they  be 
equally  divided,  or  when  he  shall  exercise   the  office  of 
President  of  the  United  States  ..........................       13 

List  of  Vice-Presidents,  n.  37. 

VICE-PRESIDENT.  The  Senate  shall  choose  a  President  pro  tempore 

in  the  absence  of  the  ...................................       13 

List  of  presiding  officers,  n.  38 

VICE-PRESIDENT.  The  President  shall  hold  his  office  during  the 
term  of  four  years,  and,  together  with  the  Vice-Presi 
dent,  chosen  for  the  same  term,  be  elected  as  follows. 
Amendments  ...........................................  12 

VICE-PRESIDENT  of  the  United  States.     Qualification   required  as 

Vice-President  same  as  for  President  of  the  United  States.     12 

VICE-PRESIDENT.     In  case  of  the  removal  of  the  President  from 
office,  or  of  his  death,  resignation,  or  inability  to  discharge 
the  powers  and  duties  of  the  said  office,  the  same  shall 
devolve  on  the  Vice-President;  and  the  Congress  may  by 
law  provide  for  the   case  of  removal,  death,  resignation, 
or  inability,  both  of  the  President  and  Vice-President,  de 
claring  what  officer  shall  then  act  as  President,  and  such 
officer  shall  act  accordingly,  until   the  disability  be   re 
moved,  or  a  President  shall  be  elected  ..................       2 

List  of  Vice-Presidents,  who  have  become  Presidents, 
n.  172. 

VICE-PRESIDENT  shall  be  removed  from  office  on  impeachment  for, 
and  conviction  of,  treason,  bribery,  or  other  high  crimes 
and  misdemeanors  .....................................       2 

(See  Impeachment,  notes  39,  40,  191-194.) 

VICE-PRESIDENT  of  the  United  States.     Election  of  Vice-President 

of  the  United  States.    Amendments  ..................  ...     12 

(See  Election.) 

VICE-PRKSIDENT.  The  lists  of  votes  of  electors  of  President  and 
Vice-President  shall  be  directed  to  the  president  of  the 
Senate.  Amendments  ...................  ..............  12 

VICE-PRESIDENT.  The  president  of  the  Senate  shall,  in  presence  of 
the  Senate  and  House  of  Representatives,  open  all  the 
certificates  of  the  electors  of  President  and  Vice-President 
of  the  United  States.  Amendments  .....................  12 

VICE-PEESIDENT.  If  the  House  of  Representatives  shall  not  choose 
a  President  whenever  the  risht  of  choice  shall  devolve 
upon  them,  before  the  4th  day  of  March  next  following, 
then  tho  Vice-President  shall  act  as  President,  as  in  the 


pp. 

86,189 


22,58 


2          27,91 


24,77 
24,78 

46,164 
47,  166 


84,169 

36,185 
4(i,164 

46,164 
46,164 


404  INDEX. 

Art.    sec.    cl.         pi. 

case  of  the  death  or  other  constitutional  disability  of  the 

President.     Amendments 12  I        40,  1G4 

ViCE-PKEsiuE\<r.  The  person  having  the  greatest  number  of  votes 

as   Vice-President   shall    be   the   Vice- Presi< lent.   if  such 

number  bo  a  majority  of  the  whole  number  of  electors 

appointed;  and  if  no  person  have  a  majority,  then,  fioin 

tlie   t\\o   hisrhest   numbers  on    the  list,  'the  "Seriate  shall 

choose  the  Vice-President:  a  quorum  for  the  purpose  shall 

consist  of  two-thirds  of  the  whole  number  of  senators,  and 

a  majority  of  the  whole  number  shall  be  necessary  to  a 

choice.     Amendments 12  2        47, 166 

VICE-PRESIDENT.  But  no  person,  constitutionally  ineligible  to  the 

office  of  President,  shall  be  eligible  to  that  of  Vice-Presi 
dent  of  the  United  States.     Amendments 12  3        47, 166 

VIOLATED.     The  right  of  the  people  to  be  secure  in  their  persons, 

houses,  papers,  and  effects,  against  unreasonable  searches 

and  seizures,  shall  not  be  violated.     Amendments 4  44, 267 

(See  Houses—Searches,  n.  251,  252.) 
VIRGINIA.     Signed  the  Declaration  of  Independence,  p.  7.     One  of 

the  Confederation,  p.  9.     Signed  Articles  of  Confederation, 

p.  21.  Signed  Constitution  of  the  United  States,  pp,  41,  42, 

252.     Qualifications  for  suffrage,  n.  17. 
VIRGINIA.    Entitled  to  ten  representatives  in  the  first  Congress  1        2        3          23,  G7 


Eleven  representatives  by  the  census  of  1860  (now 
ight),  n.  24.  Population  of,  "in  several  decades,  n.  24,  pp. 
),  70.  Assigned  to  fourth  .indicia!  circuit,  n.  197,  p.  193. 


History  of,  during  the  rebellion,  n.  235.  West  Virginia 
carved  out  of  Virginia,  notes  24.  230,  235,  276.  Ratified 
the  thirteenth  amendment,  n.  274  Rejected  the  four 
teenth,  n.  275.  One  of  the  rebel  States,  n.  277.  §  1.  Its 
government  declared  provisional,  n.  276,  p.  286,  §  1.  Num 
ber  of  the  registered  voters  in,  n.  278. 

VIVA  voce  vote.    The  senators  shall  be  elected  by,  n.  80. 

VOTE.     The  senators   shall  be  elected  by  a  viva  voce  vote,  n.  30. 

VOTE.     Each  senator  shall  have  one 1        3        1          24,  74 

VOTE.     The  Vice-President  shall  have  no  vote   unless  the  Senate 

be  equally  divided 1        3        4          24,77 

VOTE.  Every  vote  to  which  the  concurrence  of  the  Senate  and 
House  of  Representatives  may  be  necessary  (except  on  a 
question  of  adjournment),  shall  be  presented  to  the  Presi 
dent.  (See  Resolution.} 173  28,93 

VOTE.  But  when  the  right  to  vote  at  any  election  for  the  choice 
of  electors  for  President  and  Vice-President  of  the  United 
States,  representatives  in  Consress,  the  executive  and 
judicial  officers  of  a  State,  or  the  members  of  the  legis 
lature  thereof,  is  denied  to  any  of  the  male  inhabitants  of 
such  State,  being  twenty  one  years  of  age,  and  citizens  of 
the  United  States,  or  in  any  way  abridged,  except  for  par 
ticipation  in  rebellion  or  other  crime,  the  basis  of  repre 
sentation  therein  shall  be  reduced  in  the  proportion  in 
which  the  number  of  such  male  citizens  shall  bear  the 
whole  number  of  male  citizens  twenty-one  years  of  age  in 
such  State.  Amendments  14  2  48,279 

VOTES  in  the  two  houses  of  Congress,  on  passage  of  any  bill, 
order,  resolution,  or  vote,  returned  with  objections  by  the 

President,  shall  be  taken  by  yeas  and  nays 1        7    2A.3         27,91 

The  bill  must    be    returned  in  ten  days;  "veto"  de 
fined,  n.  67.    Various  vetoes  cited,  n.  67. 

VOTES  of  electors  of  President  and  Vice-President.  Place  and 
manner  of  giving  the  votes.  Lists  of  votes  to  be  made, 
signed,  certified,  transmitted  sealed  to  the  seat  of  govern 
ment,  directed  to  the  president  of  the  Senate,  to  be  opened 
and  counted  by  that  officer  in  the  presence  of  the  Senate 
and  House  of  Representatives.  The  number  necessary  to 
a  choice.  The  day  on  which  electoral  votes  shall  be 
given  throughout  the  United  States.  Amendments 12  1  46, 1G4 

VOTES  taken  by  States.  In  choosing  the  President  by  the  House 
of  Representatives,  the  votes  shall  be  taken  by  States,  the 


INDEX. 


405 


representation  from  each  State  having  one  vote.    Amend 
ments  ..........................  ....................... 

VOTES  in  the  rebel  States  upon  their  new  constitutions,  n.  276, 
p.  283,  §  5.  How  to  be  expressed,  Id.  p.  2S4,  §  3.  List  of,  to 
be  kept,  n.  276,  p.  2S5,  §  4. 


Art.    sec.    cl. 
12  1 


pp. 
46,164 


President  of  the  Senate,  pro  temper  t,  n.  38, 
Signed  Declaration  of  Independ 


WADE,  BENJAMIN. 

p.  81. 
WALTON,  GEORGE,  of  Georgia. 

ence,  p.  7. 
WALTON,   JOHN,   of  Georgia.    Signed   Articles  of  Confederation, 

&21. 
ngress  shall  have  power  to  declare  war,  grant  letters  of 
marque  and  reprisal,  and  make  rules  concerning  captures 
on  land  and  water  ...................................... 

"War"  defined,  and  how  declared  with  Great  Britain, 
France,  Mexico,  Ac.,  n.  117.  "Civil  war"  defined  ;  effect 
of  war  upon  citizens;  President's  powers  during  war, 
n.  118.  "Marque"  defined,  n.  120.  "Reprisal"  defined, 
n.  121.  Effects  of  war  upon  the  qualifications  of  members 
of  Congress,  n.  46. 

WAR.    Congress   shall   have  power  to   make  rules  ("rules  and 
articles  of  war")   for  the  government  of  the  land  and 
naval  forces    ............................  ............... 

"To  make  rules"  defined;  whereto   be  found,  n.  129. 

WAR.  No  State  shall,  without  the  consent  of  Congress,  engage  in 
war  unless  actually  invaded,  or  in  such  imminent  dancer 
as  will  not  admit  of  delay  ............................... 

WAR.    Treason   against  the  United   States  shall  consist  only  in 
levying  war  against  them,  or  in  adhering  to  their  enemies, 
giving  them  aid  and  comfort  ........  ......  .............. 

"  Treason  "  defined,  n.  215.  An  actual  levying  of  war 
necessary;  no  conviction  unless  presence  at;  levying 
proved;  "levying  war"  defined,  n.  215. 

WAK.    No  soldier  shall  be  quartered  in  any  house  in  time  of  war, 
but  in  a  manner  to  be  prescribed  bylaw.     Amendments.. 
"Soldier"  defined  ;  "quartered"  defined,  n.  250.  Object 
of  the   provision.    "Owner11  defined,  n.  250. 

WAK.    No  person  shall  be  held  to  answer  for  a  capital  or  other 
wise  infamous  crime,  unless  on  a  presentment  or  indict 
ment  of  a  grand  jury,  except  in  cases  arising  in  the  land 
or  naval  forces,  or  in  the  militia  when  in  actual  service,  in 
time  of  war  or  public  danger.     Amendments  ............ 

"  Capital  or  infamous  crime  "  defined  ;  "  presentment,1' 
"indictment,1'  "grand  jury,"  defined;  military  juris 
diction,  notes  253,  254. 

WARRANTS.    No  warrants  shall  issue  but  upon  probable  cause, 
supported  by  oath  or  affirmation,  and  particularly  describ 
ing  the.  place  to  be  searched,  and  the  persons  or  things  to 
be  seized.    Amendments  ................................ 

"Warrant"  defined;  limitation  of,  n.  252. 

WASHINGTON,  BUSUROD.  Associate  Justice  of  the  Supreme  Court, 
n.  197,  p  193. 

WASHINGTON,  GEORGK,  of  Virginia.  President  of  the  Convention  ; 
signed  the  Constitution,  pp.  41,  252.  President  of  the 
United  States,  n.  166.  Delivered  his  first  message  to 
Congress  orally,  n.  187. 

WAYNE,  JAMES  M.  Associate  Justice  of  the  Supreme  Court,  n. 
197,  p.  m 

WE  the  people  establish  this  Constitution.    Preamble  ............ 

"  We  the  people"  defined  ;  synonymous  with  -'citizens;1' 
not  a  majority  ;  negroes  not  included,  but  made  citizens 
by  Civil  Rights  Bill,  n.  6. 

WEIGHTS  and  measures.    Congress   shall  have  power  to  fix  the 
standard  of  weights  and  measures  ...................... 

"Fix"  defined;  "standard"  defined,  n.  101.  Standard 
pound  of  United  States,  how,  and  how  often,  regulated  ; 
standard  of  spirit  weight  ;  act  to  authorize  metric  system; 


8      11        29,127 


1        8      14        29,133 


10 


38 


32, 161 
38,  211 

44,256 
44,  25S 
44,257 


9,114 


406  INDEX. 

Art,    sec.    el.        pp. 

metric  measures   of  length,    surface    capacity,    -weight, 
n.  103,   pp.  116-1  IS. 

WELFARE.  Constitution  established  to  promote  the  general  welfare. 

Preamble 22, 53 

This  phrase  defined ;  date  of  insertion,  n.  11.  One  of 
the  enumerated  powers  of  Congress  ;  Story's  definition  of 
the  phrase,  n.  80. 

WELFARE.    Congress  shall  have  power  to  promote  the  general 

welfare 181         28,94 

Defined;  Judge  Story's  explanation  ;  the poicer  and  the 
purpose  discriminated;  limitation  of  the  power,  n.  80. 

WENTWOKTH,  Jr.,  JOHN,  of  New  Hampshire.  Signed  the  Articles 
of  Cenfederation,  p.  21. 

WEST  Viur.iNi  A.  Qualifications  for  suffrage  in,  n.  17.  Three  repre 
sentatives,  n.  24.  Assigned  to  fourth  judicial  circuit, 
n.  197.  Carved  out  of  Virginia,  n.  235.  Its  conduct  during 
the  war,  Id.  Ratified  the  thirteenth  amendment,  n.  274 ; 
the  fourteenth,  n.  275. 

WHIPPLE,  WILLIAM,  of  New  Hampshire.  Signed  Declaration  of 
Independence,  p.  7. 

WILLIAMS.  JOHN,  of  North  Carolina.  Signed  the  Articles  of  Con 
federation,  p.  21. 

WILLIAMS,  WILLIAM,  of  Connecticut.  Signed  Declaration  of  Inde 
pendence,  p.  7. 

WILLIAMSON,  Hu.,  of  North  Carolina.  Signed  the  Constitution, 
pp.  42,  252. 

WILSON,  JAMES,  of  Pennsylvania.  Signed  the  Constitution,  pp. 
42,  252. 

WINTHROP.  ROBERT  C.  Was  Speaker  of  the  House  of  Represen 
tatives,  n.  26. 

WISCONSIN.  Qualifications  for  suffrage,  n.  17.  Six  representatives 
n.  24.  Population  in  each  decade,  n.  24,  pp.  69,  70.  As 
signed  to  seventh  judicial  circuit,  n.  197,  p.  192.  Ad 
mitted  into  the  Union,  n.  230.  Ratified  the  thirteenth 
amendment,  n.  274;  the  fourteenth,  n.  275. 

WITHEKSPOON,  JOHN,  of  New  Jersey.  Signed  Declaration  of 
Independence,  p.  7.  And  the  Articles  of  Confederation, 
p.  21. 

WITNESS  against  himself.  Nor  shall  any  person  be  compelled,  in 
any  criminal  case,  to  be  a  witness  against  himself.  Amend 
ments 5  41,258 

This  would  be  contrary  to  republican  principles ;  con 
fined  to  criminal  cases,  n.  256. 

WITNESSES  against  him.  In  all  criminal  prosecutions,  the  accused 
to  be  confronted  with  the  witnesses  against  him.  Amend 
ments  6  45, 2(53 

"Accused"'  defined,  n.  260. 

WITNESSES  in  his  favor.  In  all  criminal  prosecutions,  the  accused 
to  have  compulsory  process  for  obtaining  witnesses  in  his 

favor.    Amendments 6  45,263 

"Compulsory  process"  defined,  n.  261. 

WITNESSES.  No  person  shall  be  convicted  of  treason,  unless  on 
the  testimony  of  two  witnesses  to  the  same  overt  act,  or 

on  confession  in  open  court 881        38,211 

Refers  to  proofs  on  trial,  and  not  to  preliminary  hearing ; 
"overt  act  treason  "  defined,  n.  216. 

WOI.COTT.  OLIVEK,  of  Connecticut.  Signed  Articles  of  Confedera 
tion,  p.  21. 

WUIT  of  habeas  corpus.  The  privilege  of  the  writ  of  habeas 
corpus  shall  not  be  suspended  unless,  when  in  cases  of 

rebellion  or  invasion,  the  public  safety  may  require  it 1        9        2        80, 140 

"Privilege"  defined;  Bates's  opinions  on  President's 
suspension  of  the  writ,  n.  140.  Habeas  corpus ; defined ; 
the.  President  not  amenable  to  the  writ;  a  writ  of  uni 
versal  risiht  ex  merito  jimtitice,  ;  when  first  suspended; 
W lien  the  lederal  courts  may  issue  the  writ;  the  power 
ol  the  State,  courts  to  issue,  n.  141,  pp.  141,  142.  Can  only 
bo  fcusptsuded  by  act  of  Congress.  The  power  of  tho  Stato 


INDEX.  407 

Art.    BOG.    cl.        pp. 

courts  over  persons  held  in  military  service  discussed ; 
ruling  in  Vallandisrhain's  case;  act  of  3d  March,  sus 
pending  the  writ;  President's  proclamation,  n.  141,  p.  143. 
Invalidity  of  the  writ  in  Mrs.  Surratt's  case;  suspension 
of  the  writ  does  not  authorize  arrest,  but  denies  the  writ 
to  the  prisoner;  this  denied  in  contempt  cases,  n.  141, 
p.  144.  Minors  above  eighteen  may  enlist  in  the  navy  with 
out  consent  of  parents  or  guardians;  Stanbery's  opinion 
in  G-ormley's  case ;  demarcation  between  the  powers  of 
the  United  States  and  the  State  courts;  the  whole  sub 
ject  discussed,  n.  141,  pp.  141-146. 
(See  Habeas  Corpus.) 

"WRIT  of  right.    The  habeas  corpus  is  a,  n.  141. 

WRITINGS.    Exclusive  right  to  writings  may  be  secured  by  authors 

for  a  limited  time 188        29,121 

Object  of  this  power  of  Congress;  "author"  defined; 
copyrights,   how   secured  ;  limitation  of  the  power,  10T. 

WYTDB,  GEORGK,  of  Virginia.  Signed  the  Declaration  of  Inde 
pendence,  p.  a 

YEAS  and  nays  of  the  members  of  either  house  of  Congress,  on 
any  question,  shall,  at  the  desire  of  one-fifth  of  those 

present,  be  entered  on  the  journal 1        5        8          26,87 

"  Yeas  and  nays 11  defined,  n.  51,  p.  83. 

YEAS  and  nays.  Votes  in  the  two  houses  of  Congress,  on  passage 
of  any  bill,  order,  resolution,  or  vote,  returned  with  ob 
jections  by  the  President,  shall  be  taken  by  yeas  and 

nays /. 1        T      248       27,91 

(See  Veto—  Votes.) 


I 


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